 Welcome, everyone, to the Thurgood Marshall Memorial Lecture, which this year is also serving as part of the President's Distinguished Lecture series and the Talking about Race, Gender, and Power series. I want to thank President Farrish for his support. He couldn't be with us this evening, but he sends his regards. I want to give special thanks to the law firm of Hinckley Allen and Snyder for their support for the Marshall Lecture. They have been with us since the beginning, in 2001, when Eric Holder gave the inaugural lecture years before he became the Attorney General of the United States. I'm also delighted to welcome back to his alma mater and to thank Adam Ramos, who is now a partner at Hinckley and has been instrumental in continuing the support of this lecture series. I also think it's appropriate just for us as a group to take a moment and think about giving thanks to Justice Marshall's widow, Cecilia Marshall, who endorsed this lecture series years ago and for many years joined us. Outside, you can see a picture of her with our 2006 speaker, Devon Carbado. On the occasion of the 50th anniversary of Brown vs. Board of Education, our Marshall speaker, David Wilkins, who clerked for the Justice, said that he had absolutely no doubt that the justice could not have done the work that he did without the support of Mrs. Marshall. Mrs. Marshall, on that occasion in this very room, said that the lesson she took 50 years after Brown vs. Board was that we need less blind optimism and more appreciation for how much hard work remains to be done. And with the support of Hinckley Allen and with the participation of many of you, we've been able to talk about that hard work here for almost two decades. So it is my great pleasure to introduce Richard Thompson Ford, who is the George Osborn Professor of Law at Stanford Law School. I first became aware of his work in 2008 when he published the race card in which he argues and I will not do this justice. He's right here. He'll correct me if I'm wrong. That spurious claims of race discrimination distract attention from the important and unaddressed problems of racial inequality that continue to plague our society. It was a very challenging argument separating the weak from the chaff, so to speak, and one reviewer from the New York Times described it as relentlessly even-handed, which is a very nice compliment. He followed that up with a book called Rights Gone Wrong, in which he argues that both the left and the right are mistaken in the way that they conceive of problematic race discrimination. This even-handedness or bipartisanship is a compelling characteristic of his work, which appears not only in his books but in law journals and in the popular press. He's been on the Colbert Report, for those of you who are interested. His writing appears in major newspapers and in what we used to call magazines. Indeed, in describing a recent article that he wrote for one of those magazines, the American Interest, about what he termed, has termed, the Trump post-white presidency, Professor Ford himself wrote that it was, quote, guaranteed to anger almost everyone left and right. He is currently at work on a book about dress codes. Some of us had the opportunity to hear him talk about that earlier today. It's a fascinating project. I commend to you his recent articles about President Trump's ties and why they really matter. He will be signing copies of Universal Rights Down to Earth. They are available just outside the room. That's his book about the global human rights movement. Please join me in welcoming Professor Richard Thompson Ford. Thanks everyone for coming to see me and thank you for inviting me here for this prestigious lecture. I'm honored and pleased to be here. I fear that I may not live up to the introduction as quite as heterodox a thinker as I was made out to be but I have done in the past a lot of work to try to make the case that some of the ways that we habitually think about racial and other social injustices in our society are at best incomplete and in some circumstances counterproductive. Now when I wrote the race card many years ago in 2005, I argued that there was a widespread consensus norm that explicit expressions of racism were unacceptable in our society. Times change and part of what I'd like to do today is kind of update some of the arguments I made in that book arguing that while just about everything I said was still right there are in the contemporary environment reasons still to be concerned about unjustified claims of racism and also reasons to be concerned about a too narrow and too formalistic view of what counts as social injustice or discriminatory bias. So in that book and in Right Gone Wrong I make these claims. I'll start by talking a little bit about something that happened back in 2005, Hurricane Katrina because that's an instance which I think brought to the fore a lot of the problems that I want to address today. On the one hand there was a norm that explicit expressions of racial bias were unacceptable and as a result when most people who were biased hid their biases and two I think it was fair to say that the amount of conscious bias in the society had declined quite significantly since the 1960s and yet at the same time racial injustices were and are everywhere and I can give you the familiar litany policing and criminal justice in fact racial profiling which was the hot topic in 2005 now seems almost quaint in the wake of Black Lives Matter and the injustices that that movement has brought to our attention employment discrimination continues to be an enormous problem segregation in public schools and in neighborhoods and Hurricane Katrina brought a lot of this to the fore because of course after the hurricane hit in the levees failed what was quite clear was that the African American community suffered the disproportionate brunt of the aftermath. Not only that but the response of the federal government which was by most accounts inadequate by some accounts inept to many seemed to be so in part because of the people who were suffering so at that time when you may remember during a fundraiser for the victims of Hurricane Katrina the musician Kanye West said George Bush doesn't like Black people kind of it's spontaneous outburst and I argued at the time and I would still argue today that that response was both understandable and unfair understandable because Katrina and the inadequate response to it did disproportionately harm Black people and that racial inequity was not an accident everyone understood that unfair because there was no evidence that George Bush was a racist instead the inequities were the result of the continuing effects of past racism in particular neighborhood segregation the isolation of poor African American communities in neighborhoods that were both more vulnerable to this type of disaster and lack the resources to avoid or get out of those circumstances they may be feared to say that the federal response was colored by politics the people in New Orleans not being among the the supporters by and large of the Republican Party and all of those features led to an understandable claim of racial injustice but was George Bush a racist if George Bush doesn't like Black people what do we just say about a man who spearheaded the birther slander against President Obama insisted that black defend criminal defendants were guilty after they had been exonerated by DNA evidence described a conflict between white supremacists and their opponents is one in which they were fine people on both sides and called African a majority Black and majority Latino nation shitholes when discussing their immigration priorities what I'd want to suggest is that it may be that in calling Bush a racist without much evidence it's made it a bit easier and I would argue all too easy to for some people to deny that Trump is one in spite of a lot of evidence after all in today's environment there's a common discourse that liberals just play the race card against anyone with whom they disagree so the problems I want to address today are that we live in a society in which there are lots of racial injustices neighborhood segregation the incarceration rate unemployment police violence but many of these problems not all but many don't fit the conventional civil rights model well we can't find a racist we can't find explicit discrimination civil rights were in the conventional sense were astoundingly successful in dealing with blatant Jim Crow style discrimination and I want to emphasize they're still doing lots of important work today as my comments just suggested overt racism is far from gone in our society and examples of explicit discriminatory policies are still there are still plenty of them but the conventional civil rights approach does too much and not enough at the same time so I'll talk about a few examples of that 50 years after brown versus board of education we still have schools where roughly one quarter of black students in the northeast and midwest attend schools that are almost entirely non white and at the same time civil rights laws in fact the same principle articulated in brown versus board of education now prohibits modern modest efforts to integrate the schools you might say well that's just a problem of conservative justices who perverted the civil rights movement and it's true to some extent but not entirely laws for instance against sex discrimination haven't done much to change the wage inequities that leave women earning 70 to 80 cents on the dollar as compared to men but those laws against sex discrimination do in many states in the United States allow men to sue and recover thousands of dollars for discrimination when nightclubs have ladies night and that at least might suggest a misplaced set of priorities that I'll argue is a consequence of a particular legalistic way of looking at the problem of inequality in our society and finally police violence is endemic in our society and yet a consistent frustration since black lives matter has been the fact that there are very few indictments of police officers responsible for that violent and even fewer convictions and I'll argue part of that is because we're looking for a specific individual to blame for the problem of police violence when we ought to be and need to be looking for institutional and cultural factors that produce an environment in which that kind of violence is almost inevitable okay like to start by talking about Brown versus Board of Education obviously one of the most if not the most important case in the civil rights canon and a case that did a great deal to advance the norm that explicit racial classifications and explicit statements of racial bias are unacceptable in our society on Brown's 50th the 50th anniversary of Brown versus Board of Education there was a lot of celebration and a lot of patting ourselves on the back about how far we come as a nation with respect to racial equality but at that same time the Harvard Civil Rights Project for instance pointed out that a substantial group of American schools are virtually all non-white and those schools educate roughly a quarter of all black and Latino kids nationwide in 2006 two of every five black and Latino public school students attended a school that was over 90% non-white and the segregation of our public schools is actually getting worse not better and has been over the past decade or so at least the situation even in 2006 was dire enough that the law professor and veteran civil rights lawyer Derrick Bell went so far as to suggest that the nation's minority children might have been better off if Brown had come out the other way and the nation instead committed itself to the breached promise of separate but equal in other words focused on the equal this was someone who dedicated his life to fighting racial injustices he wrote Brown is a magnificent mirage to which all aspire without any serious serious thought that it will ever be attained and then finally and in my view perhaps worst of all in 2007 the Supreme Court held that the legal precedent of Brown versus Board of Education prohibited policies that advanced integration so I'll talk a little bit about that so we have in one sense in a practical sense the argument in Brown being flipped on its head by 2007 after Brown versus Board of Education a few things happen and one thing to notice is that in the context of Brown a lot of disparate factors came together you had an explicit racial classification to be sure you also had explicit and undenied racial animus stereotyping psychological entry to students of color and inadequate and unequal resources all of these things came together in Brown and the court at Brown didn't feel the need to disaggregate those factors and neither did the lawyers are arguing the case and for very understandable reasons and so we got statements to the effect that the problem was that the state had classified its citizens according to race now after Brown is well known many of the southern school districts resisted in what's been come to be known as massive resistance and at the end of the era of massive resistance after federal funding was tied to making serious efforts to reverse the policies of Jim Crow we got instead a lot of policies designed to reproduce the effects of Jim Crow without making an explicit racial classification that much is quite clear and the result of all that was that the courts had to dig deeper they had to push into the effects as well as the evidence that the court the express motivations of racial injustices and the result was what we now remember as a series of more assertive efforts to desegregate the public schools to move closer to something like statistical de-concentration those efforts in the 1970s often took the form of busing against which there was a great deal of resistance in many white communities including violent resistance in some context such that in for instance South Boston whites boycotted the public schools in response to desegregation efforts and white mobs through stones at school buses carrying the children from the predominantly black rocks very neighborhood to the schools in South Boston and similar instances occurred in other contexts with the result that understandably some parents of African American children asked whether or not there may be another way forward a way that didn't involve sending their kids into a war zone and yet these compromise approaches were in some sense a betrayal of the ideal of the civil rights movement and so civil rights lawyers naturally and again understandably resisted the idea that there ought to be such compromises there were also practical impediments for instance as the desegregation cases work their way through the federal courts the composition of many of the school districts that had been responsible for Jim Crow segregation had changed so in 1952 for instance the Atlanta school district was 32% black by 1974 it was 82% black the Detroit school district was over 90% black by the time the remedies began to make their way to the federal courts and all of that made it not just difficult but in some cases impossible to achieve meaningful integration within the conventional civil rights model proposed in which we look for a villain in which we look for a responsible entity in charge it with achieving the remedy a case called Millican versus Bradley makes that quite clear because in 1971 in Millican after Detroit's public schools had become overwhelmingly African American a district court found that relief of segregation in the public schools cannot be accomplished within the corporate geographic limits of the city in other words the school district within the city is too now too heavily black for us to achieve meaningful segregation so the court defies the desegregation plan that included the suburbs of Detroit and affirming the sixth circuit noted that if we were to hold that a school district boundaries were an absolute barrier to the Detroit school desegregation plan we would be opening away to nullify Brown versus Board of Education the supreme court however in Millican versus Bradley did exactly that and held that the record contained evidence of segregated conditions only in Detroit schools and therefore only Detroit could be required to remedy the segregation not its surrounding suburbs even though it was conceded that Detroit alone could not do so so local government territorial boundaries are now doing the work of segregation in Millican and in a lot of other districts in the United States in some sense the people who are responsible for de jure segregation have de-camped the suburbs that the suburban districts as districts never engaged in de jure discrimination and so the supreme court says they can't be required to participate in the remedy so what I want us to notice here is that we have a structural feature but a legal feature boundaries between Detroit and Gris Point or law they're not features of nature or topography their laws but those laws aren't interrogated and the result is as the six circuit said that we've opened away to nullify Brown versus Board of Education subsequently in the 1990s we had courts in one sense kind of adopting a peace with honor approach to the struggle for school desegregation and declaring district after district in compliance having achieved what's called unitary status now this is despite the fact that the schools remain segregated and it was a result of all that and as a result of relaxing or abandoning the effort to desegregate the schools we're now moving in the opposite direction then we get in 2007 to the parents involved case now at this point the school districts that are engaged in desegregation plans most of them are doing so voluntarily been declared in unitary status they're no longer under court order but they're doing something in continuing some of the policies in a milder form but continuing some of the policies that the courts had imposed Seattle Washington Louisville Kentucky or among those school districts and have mild desegregation plans involving magnet schools and involving the use of race as one factor among many in breaking ties to determine who can enter a school so the idea is that if your presence will help to integrate the school that's one factor among a lot of others for school assignment and the Supreme Court strikes it down quoting Brown versus Board of Education so no state has any authority to use race as a factor in affording educational opportunities to among its citizens in the oral argument of Brown versus Board of Education Supreme Court takes that up and concludes that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race sounds good the syllogistic formulation and as a result one way of looking at the doctrine is that we have a consistent application of the law across the cases another way of looking at those that development is that Brown has been turned on its head so that a legal doctrine that everyone at the time of Brown understood was designed in order to prevent the segregation of the schools is now designed applied to prevent the integration of the schools but from a sufficiently scholastic legal perspective it makes sense. Is it really so hard to tell the difference between such defensible and pernicious uses of race I'd argue at the time a Brown versus Board of Education it was quite clear that when the attorneys involved argued against allowing the state to classify their students because of race they understood that in a social context in which those classifications not only came with stigmatizing meaning but also came with profound material consequences that were quite the opposite in 2007 with respect to the plans that issue in Louisville and Seattle. Now one might say well very well and good but this is just conservatives cynically hijacking the civil rights movement and its doctrine for their own purposes that's that's all we're talking about here. And I'd say not only that it may be partially that but not only that but liberals too have adopted some surprising applications of civil rights laws for instance in 2008 a California plaintiff filed a lawsuit to stop Mother's Day sex discrimination lawsuit what happened in 2005 the California Angels baseball team held a Mother's Day celebration and they handed out goody bags to all of the mothers who attended the game but since they couldn't be sure who were mothers and who weren't the team decided to generalize mothers as females 18 years and over and give them and only them a Mother's Day gift bag the plaintiff in the case was a man didn't fit the description and didn't get a gift bag and sued for sex discrimination. Now it turns out he lost that lawsuit but this lawsuit wasn't as crazy as it sounded because plaintiffs in California had prevailed in suing for sex discrimination in the context of ladies night promotions at bars and night clubs and they prevailed in many many different cases not just in New York but in states all over the United States not all states but many based on the observation that ladies night is sex discrimination straight forward any kind of promotion that's applied to women and not to men counts as sex discrimination. We had similar lawsuits some successful against gyms that set up separate workout facilities for men and women for reasons that may be controversial but are at least understandable and I think not understandable in terms of hostility towards either men or women. Rita Haley the president for the New York City chapter of the national organization for women remarked I'm concerned that we're looking for discrimination in all the wrong places and yet it wasn't just opportunistic lawyers or conservative seeking to hijack civil rights policy but also California's famously liberal Supreme Court Justice Rose Byrd who said the legality of sex based discounts cannot depend on subjective value judgments about the types of sex based distinctions that are important or harmful. And so I suggest that she went on to say that women are one act of discrimination can't cancel out another so that if a bar has a ladies night and then a men's night as some did in order to try to balance things out said that if a bar had a white tonight followed by a black tonight no one would blink an eye at denouncing each night as discriminatory. So discrimination is discrimination I suggest that this echoes the argument made by the Supreme Court and parents involved that we can't tell the difference between policies that are benign and malignant that we can't tell the difference between policies that further and entrench historical patterns of disadvantage and those that do not do so and perhaps even reverse those patterns. And I would suggest that not only can we but we must make such value judgments that the narrow and scholastic view of our employment discrimination laws is not only inadequate to capturing much of the injustice that goes on in our society but it's actually counterproductive as we can see particularly in the case of parents involved which flips Brown versus Board of Education for practical purposes on its head. I'd like to talk a little bit about the kinds of social injustices we face now and how some of those many of those won't be addressed by looking for discreet discriminatory actions or actors. So in my stomping ground the Silicon Valley in which most people running companies express pretty liberal views on social issues women for instance are you know kind of like when you type into the web browser but the address is gone you get the 404 or not found. Well that's women in high tech. 17% at Google 3 of 36 people and worse in some context very small numbers and it's very difficult to argue that those kinds of disparities are a result either of lack of qualifications or lack of interest on the part of women for what are some of the most well paid and powerful jobs in the new economy. Instead what you seem to have in the context of high tech is a culture of a boys club. Many of these companies in fact started off in fraternities or dorms among a group of young men and as they grew they weren't thinking about how to be the most inclusive workplace they were simply thinking about how to get the next round of venture capital funding and developed a culture which was a lot like the culture of fraternity and surprise surprise that culture is not a great fit for women and now one of the main rationales expressed by companies in the Silicon Valley when they reject applicants is a lack of culture that very common justification. In some instances you'll find explicit sexist and explicit sexist commons but they don't always line up with the biggest problems in terms of the disparities they can be hard to prove or hard to prove the relationship between the sexist comment and the decision making so causation is a problem. But we know we have a problem I would argue. Again this doesn't mean that we should abandon the civil rights approach when it's working but it means we need more and we shouldn't allow it to capture our imagination as the universe in the full extent of possible approaches to dealing with social injustice. I could talk a little bit about race in the context of there are a few more statistics that demonstrate both with respect to race and with respect to sex the disparity in the workforce in Silicon Valley that was just a few years ago. But let's talk about policing for just a moment. Black Lives Matter has drawn our attention to the problem of police abuses and racial injustices and criminal justice but obviously this problem is nothing new. This is just the latest generation in decades of conflicts between the black community and police. Every one of which generated an outcry and a promise to fix the problem and was described as a wake up call and every one of which failed to do so so that we're still fighting the same fight 50, 60 years later. Even now it's difficult to find the responsible officer against whom prosecutors are willing to indict or grand juries are willing to indict and even harder to get convictions and yet we have instance after instance of the problem continuing unabated. These are just a few examples of people basically making the same observation about each incident time after time. Are we looking though for discriminatory actors or is there something more complicated going on? In Baltimore for instance one of the more egregious incidents you three of the six officers accused in the Freddie Gray killing were black. The police chief was black, mayor was black. It's not exactly the description of Jim Crow type system of discrimination and yet the problem is undeniable. A few reasons why that are structural. In Ferguson we'll remember the justice department found that the police department was engaged in revenue policing. They're pulling people over for minor infractions not because they think the infraction is a problem but because they need to raise money for their cash-strapped police department. That's a structural problem. It has to do with local government boundaries again just like the problem in Millicott. It has to do with the decentralization of the responsibility for law enforcement in our society which is something that's quite unique to the United States. I find in talking to people in other countries they're quite shocked to learn just how decentralized the responsibility for something as important as law enforcement and the states monopoly on violence is in the United States. So that we have a situation in which some police departments are so cash strapped that they need to engage in this kind of policing that creates the overwhelming likelihood that we'll have a spiral of escalation and the problems get out of control. In terms of actual death according to the Berkeley law professor Frank Zimmering who just wrote an excellent book called When Police Kill. Police killed roughly a thousand Americans every year in the United States. African Americans are 2.3 times more likely to be killed by police than whites. Part of the problem is neighborhood segregation once again and the concentration of African American in neighborhoods that are understood to be or defined to be problems for the police. Places where police are intervening in a distinctive and more aggressive manner. To be sure part of the problem is police bias. And then part of the problem is the proliferation of guns in our society. American police it turns out are 25 times more likely to be killed in the line of duty than our police in the United Kingdom and 40 times more likely to be killed than police officers in Germany. That difference is explained almost entirely by the availability of firearms in our society. Guns are used in 70 to 97% of all fatal attacks on police and police respond to that risk with lethal force so that the encounters that happen disproportionately the encounters are happening in minority communities and when those encounters happen they're much more likely to end up with a dead body at the end of them than they would be in another context. These are structural problems. My claim here is not that there are no answers to these problems, far from it. It's that the answers to these problems are multi-valent and eliminating discrimination is only one part of the puzzle and in many cases an increasingly small part of the puzzle. In part because discrimination is the way we've defined it in our society is very hard to prove and in part because the structural and cultural and institutional features that generate these inequities operate even when people aren't in fact discriminating. The discrimination has happened in the past and that's why we have a segregated minority neighborhood. The discrimination has happened at another level of authority for instance the decision to heavily police a particular neighborhood and the consequences are more dire sometimes for reasons that have very little to do with discrimination. Again, I don't want to suggest that we abandon the civil rights anti-discrimination approach. It's done good work and it's doing good work but I do want to suggest that that approach shouldn't be the only way and probably shouldn't even be the central way that we think about dealing with problems of social injustice. The fact that that approach has captured our imagination because precisely because it was so successful in dealing with a discrete type of social problem has meant that we found it harder to deal with other types of social problems. My suggestion and this is quite general for reform is that one we actually need the cooperation of the people that we're regulating to figure out how to deal with the institutionalized and cultural forces that are creating these inequalities and right now dealing with it exclusively in the context of an adversarial legal system guarantees that we don't get their buy-in very often. In fact the only times we get their buy-in is perhaps in the form of some consent decree and that tellingly can be quite successful in generating reform but in general we don't get their buy-in we need it and so we might want to consider other approaches to getting the cooperation of the regulated entities so that we don't have a situation where it's just courts trying to figure out what to do from the outside without an understanding of the institutions that we're regulating. I'd suggest one thing if we could think about this as a social problem outside the conventional adversarial legal system and imagine what we do in the context of other types of administrative regulation one thing that we do is we look at measurable progress and we penalize actors that don't make measurable progress toward the goal that they have a duty to and we reward or at least don't penalize those who do. We now live in a society in which statistical computation is extremely easy to do and increasingly sophisticated and yet we're quite skeptical in many cases of the use of data in order to measure outcomes in the context of civil rights and anti-discrimination in part because of the symmetrical approach that I've described and critiqued earlier we think of any attempt to deal with statistics as requiring proportional representation or quotas and quotas have become a dirty word in our society I think they shouldn't be that if we look at these types of patterned inequalities as a social problem and need of a solution the way in modern government the administrative state deals with such problems is through numbers and we've deprived ourselves of that very powerful tool in the context of civil rights which is too bad. So in conclusion I think that we need new thinking about these problems alongside the old thinking but that to some extent the old thinking is in the way of new thinking because we've understood it to be the comprehensive solution to the problem rather than one solution among many and in our contemporary environment and particularly in confronting a context in which explicit bias and racism is now sadly looking as if it's become more acceptable we desperately I think need both approaches. Thank you. Richard thanks very much for your talk. I was very interested in your prescription for where we go from here and it struck me that some of the work by Sable and Simon and what they call democratic experimentalism is consistent with your approach. Am I on to something there? Yes, yes. In fact I know Bill Simon Welle and I admire his work and I think that you know that they are looking at new approaches to dealing with some of a wide range of problems in our society and that's those kind of new ideas that I'd like to see as much more open to. Thank you. Thank you so much for your talk. I was wondering if you could give an example of your last bullet point. I'm very intrigued with this idea of immunity from discrimination lawsuits and and how that might work out. Well yeah I mean I want to tread carefully here and I can't claim to have a you know a detailed policy proposal but what I suggest is this in the contemporary context of anti-discrimination law a complaint by lots of employers let's just take employers for an example is you know we get blindsided by a big discrimination suit which comes out of the blue it's very costly in terms of a bad PR and we as an entity fail like we didn't we don't know what we're supposed to do. The entity so part of the idea of the proposal is that the entity is a separate thing from the decision-maker so although the entity is in charge of and responsible for the decisions made by the decision-maker there's not a perfect relationship. What can the entity do? Well you can set up procedures which could be monitored and regulated and it can look to goals and timetables old phrase from the public contracting context in the 1970s what if we expanded that to say to the the entity as an entity if you have the appropriate procedures in place and if you meet the appropriate goals and timetables and improving the problem in your workforce we'll give you some kind of limited immunity to individual lawsuits. Now I doubt that's controversial and I suppose I mean it to be but what I want to use this example in order to push a point which is right now our overwhelming impulse is to think of any instance involving this type of social injustice as an individual injury involving an individual bad actor and an individual victim and I suggest that we would make better progress as a society if we thought of it as a systemic set of injuries as a result of a culture in which both responsibility and injury are diffused. In the contemporary anti-discrimination landscape the number of people who actually file and can successfully complete an anti-discrimination lawsuit is a tiny fraction of the people who are victims of discrimination we know that. We know first of all that the cost of filing the lawsuit is high and that many people with the strongest suits don't bother particularly in the context of something like failure to hire. You're a qualified candidate and you're not hired do you spend the next two or three years investigating why you weren't hired to find out that it's sex or race discrimination or do you move on and get hired by someone else. So there's a lot of injury that's happening that's not taken up. Employment discrimination lawsuits are the least successful in any civil lawsuit in the federal bar according to recent statistics or in the federal courts and so it's you know we're not doing a great job right now of remedying individual injury and if we trade it off a little bit of individual entitlement in exchange for a big improvement in the social outcome I'd suggest that might be a good trade. I thank you very much again. I'm also really intrigued by the prescriptions for a potential new way of thinking about how we approach this but I as I think about it I wonder how do we make sure that these new ideas carrots as opposed to only sticks don't fall prey to the the legalistic limitations that we already have. If quotas have become a dirty word and we create carrots around doing things around integration won't the unhappy who didn't buy in fight the same battles that have been fought already. We'll fight the same battles that have been fought already. And one you know make a make a ladies night lawsuit. No no doubt. So I mean in part of what I'm suggesting is that we need in the first part of the talk we do need lawyers and judges to rethink the way they take up the conventional anti-discrimination approach to these questions. You know I think for instance as much as I admire Rose Bird's career that that it was just wrong to say we can't make value-based distinctions between you did in fact your job as a judge is to make value-based judgments is between various types of discrimination and that that needs to be done and done explicitly and owned up to you and defended and that that would open or begin to open the possibility of these new approaches but you're right I mean if we adopt the position that that Justice Roberts adopted and parents involved that slams the door to a lot of otherwise promising approaches that would be more effective arguably less costly and would allow us to use the statistical tools that we have available to us. So what do you do in situations where the emotional power of storytelling and an individual's case can be made more effectively than a situation where you're bringing big data into the picture where little Shirley is going to trump big data in a lot of situations. Oh absolutely in litigation that's true and that's part of why I also suggest that we can attack this problem in some instances more effectively through something that looks like an administrative remedy or regulation as opposed to litigation litigation is great for telling that compelling story and you know again there's a place for that don't want to suggest otherwise but the administrative state can do remarkable things with respect to big pervasive problems in which responsibility is diffused but large entities can make an intervention and that's what we haven't done much of on this in the context of civil rights and these kinds of social injustices we've done a little bit you know there's precedent in the context of government contracting for instance for requirements like government contractors don't underutilize and goals and timetables but it's very limited and it's in battle I'd like to see that approach expanded and it's true that what I'm suggesting is that the emotional story that's proved so effective and so powerful in certain instances is now in the way that the because the inability to tell that emotional story or the desperation to find a way to tell that emotional story even when it doesn't quite fit the problem has distracted us from potential more sweeping solutions and so sometimes we need the emotional story but I think we rely way too heavily on it right now yeah I agree and you know I mean I'm not a statistician by training but I work with people okay yeah I work with people who are very very good at quantitative statistical methods and you know one of their great frustrations is when the statistics aren't believed when they're ironclad or when dueling statisticians can cloud the issue in the context of litigation when there's one side that's clearly right in the other side that's just lying so better statistical training could fix that problem but that's endemic to the litigation system in which you have a judge who may or may not be well versed enough in the statistical methods to tell the difference between you know good statistical methods and bad ones I think we could do better in the context of the administration with respect to that because we do have the information in some circumstances not that we don't know it's that we can't get the information where it needs to be but you know it is certain and another thing it's one thing I would like my ambition for this approach is that we don't have to worry so much about the the complexities that you've described we can kind of leave that to the decision-maker so if we simply say look we know that these numbers are no good we know that you know three percent four percent women in a field where you've got fifty percent women in the applicant pool is no good you can argue about whether or not it's because you had discriminatory hiring practices or whether it's because you recruited from places where women were under represented or it's culture fit or whatever you fix that you know but we expect to see an improvement in these numbers you're more aware of where the problems coming from same with policing if you say that it's not biased officers but it's you know two problems in the neighborhood or whatever you yeah you know that very well but we expect to see you know fewer of these kinds of harassment arrests we expect to see improved numbers over time and you can figure out how to do that better than certainly better than a judge or a lawyer who's only you know looking at that for a discrete period of time so I think you know it does require controversial policy judgments about you know just how much improvement is reasonable to expect I acknowledge that and those are political questions that are going to be hard to answer but I do think in the contemporary environment you know there's pretty wide spread agreement that some of these things are a problem that there's a relatively small number of people who say like you know I think this is just fine the way it is there's some but not that many and so having acknowledged there's a problem we can at least have consensus that there are to be some improvement and we'll fight out how much later professor Ford certainly the courts have been responsible and complicit in a lot of decisions over the history of the United States that have been unfair I suspect that they're going to continue to be but my my concern is and when you say pursuing an administrative perhaps kind of I'll use a term remedy it kind of I'm troubled by my concern is well who are the administrators or who appoints the administrators so if we go to our current elected elected officers you know I would be personally I'd be very very concerned about an administrator appointed by the current administration trying to come up with a remedy for me right and so I mean and so we have you know we have the issue with federal laws we have issues with state laws we have municipal laws etc etc so I was afraid someone was gonna ask that question because of course that is the way I mean there is a weakness to any institutional approach to this problem and I pointed out some of the weaknesses of relying on litigation and lawyers in the judiciary the weakness of the administrative approaches exactly what you put your finger on these are political appointees and there's also potentially the problem of capture if the administration in question isn't vigilant about that it's that's a problem I won't deny it I will say this that it these are to some significant extent problems that will have to be resolved in the political sphere with the problems of democracy now again I don't want to say that we should abandon litigation but at least given the way our approach to litigation has evolved it's a limited approach and it's one that is you know increasingly running up against its limits in terms of the kind of injustices we face so at least a bore sustained focus on the inevitably political nature of the problems and the remedies has the potential to give us better outcomes when the right people are in charge but to be sure just as it with anything else in democracy if the wrong people are in charge you're gonna get bad policies and bad outcomes I have a question very much along these same lines but I'm wondering about I mean I find your proposal at the end very intriguing to move away from the model of focusing on the bad actor and trying to figure out how to you know to create new incentives to avoid that problem thinking about the problem of police violence so that you know that we've seen focusing on the bad actor is very ineffective at coming up with solutions and I don't just thinking through if we had a say a federal program that gave money to local police departments if they could show a decrease in the number of lethal encounters with civilians and I and I could see the appeal of that I could see why that would might be a nice program because then the local police would have to think about what do we need to do to decrease lethal encounters and they'll come up with solutions and we think that they'll figure out a way and we don't have to point fingers at them and say you're bad actors they just know if they start if they you know start killing fewer people they'll get more money and we think that the culture would be good my my concern about it is then are there unintended consequences of a program like that that are gonna recreate the problem that we're dealing with that is is there something like Millikin that's gonna be out there where you know the you know if you know they're gonna continue to do the bad thing that we're concerned about but figure out some way to keep getting you know to get the money that that we're after or is this concern you know is this you know should we is it worth the whatever the risk of these bad consequences are figuring out ways around the system maybe it's captured by the administrative agency or maybe they're gonna be fighting about what constitutes a lethal encounter they'll be using not more nonlethal encounters the word you know there'll be other harms that will increase to you to address this problem or is it worth you know trying to experiment in the first place right so yeah I mean I think it's true that there's always the risk and indeed probably the certainty that regulated entities will try to manipulate the metrics in some way I'm sure that problem is quite pronounced in other areas of administrative law where compliance is based on on metrics you know I mean I'm thinking pollution for instance where you know whatever type of pollution is regulated the company reduces that but they may increase pollution that's not regulated or that's regulated less severely so yeah it's a risk it does seem to me that that's a question of the design of the policy and you know a sufficiently thoughtful design would be able to head off at least some of those problems I do think that there's a also a big question of which level of government needs to be pressed and particularly with police violence you know is it the state or the local because the state is responsible for the organization of the local government so you don't get Ferguson without a state that allows its its local government entities to be set up in such a way that you've got police departments that can't you know afford to operate without revenue policing maybe the state is the right place to put the pressure but you know my thought is if you could make it more you know financially better for Ferguson not to engage in revenue policing than to engage in it that would be a step in the right direction and yes I mean I think the problems of the institutional design and their risks but their risks that could be managed so this is this is a completely unfair analogy all right and but my point is I wonder how how this gets sold or how this gets this idea gets spread because one of the things that I keep thinking in this regard is again it's unfair but it's like tort reform you know you have you have you have a program out there where there's suspicion as to why are you enacting tort reform is that the trial lawyers are on one side the insurance companies are on another side how do you get to a point where it's not viewed as tort reform but it's viewed as something that is beneficial all around that's an interesting question I my thought is that there is room for some win-win proposals at least with respect to the parties that are conventionally plaintiffs and those that are conventionally defendants in these types of lawsuits so you know with respect to employment discrimination for instance you might think that a proposal that's going to require the employer to meet certain numerical goals or to demonstrate that they're using best best practices or something like that would be something employers would hate but often you hear the employers say we don't know what we're supposed to do if someone would just tell us what we're supposed to do to avoid these lawsuits we'll do it but what's happening now is that you know one manager does the wrong thing and then we get hit with a giant lawsuit and it's bad for PR and it doesn't reflect what we really value in our business so they might actually prefer more regulation you know that gives them something like a safe harbor this is you know you're now in compliance you're not a bad actor you don't deserve a big PR hit you've done the things that we think you should be doing in order to you know improve the situation now on the plaintiff side the loser is the individual who might have won the lawsuit but now is going to be faced with an employer with immunity or some kind of a new affirmative defense I mean this I'm actually kind of borrowing this from the idea of affirmative defenses in the sex harassment context for instance where you know if that kind of rule worked well there's argument about whether it does but if it worked well you could say most potential victims of sex harassment would be better off with an employer with a good policy in place to stop it even though the employer gets the affirmative defense in the individual case so the individual is arguably worse off but in that context the individuals don't know who they are in advance and we we can presume that most people would rather not have a lawsuit they'd rather not have the harassment or the discrimination of whatever it is in the first place so there's a potential for win-win with respect to this I think now you know certainly there are people who are going to dislike it because it's quotas on ideological grounds and you know those people you just are our enemies and they have to be defeated if the proposal is going to move forward but I think most people you know it's not anti-business or it's not anti- employer that's the important part it can be pro-social justice and kind of pro-employer at the same time that's what I'd like to think and I think something similar is true with police where you know people running police departments generally don't want to have a police department that's just involved in the business of harassing people of color that's not the objective and but there is a problem with the institutional culture there's a problem with bias on the part of individual officers some not all and there's a problem of these institutional and structural factors that haven't been on earth I bet you the Ferguson police department would like nothing better than to have enough money that they didn't do engage in revenue policing and that's where we want to get where you know you could do your the real job as a police officer and not this this job that's been foisted on you by by by finances so you know there are cases that are going to be harder than that to crack I acknowledge but I do think that there's some win-win cases there's some blow-hanging fruit if you will at least we could pick that so I'm gonna do one more question I'm gonna have right over here hello I'm undergrad my name is Asia I just wanted to ask do you think legislation is the true solution to altering the underlying power bias embedded in American society no I would say legislation is a partial solution you know and it what I would be proposing in terms of legislative reform we could analogize it to the Civil Rights Act of 1964 that was legislation but the way the legislation work was that it gave individuals a private right of action and that the main make of the enforcement mechanism was private enforcement that's a policy decision you know from the level of policy it's a policy decision to decide that we're gonna go about enforcing the law through private litigation as opposed to some other mechanism and my suggestion is that we can at least re-examine that policy decision and ask us how well it's work whether it makes sense and in what context it makes sense to continue that or whether it needs to be augmented in other ways but ultimately legislation is only a partial solution I mean I think the the ideal and what one sees in environments where these kinds of long-standing inequities are really improved is a combination of you know legislation and social morality and changes in the culture that feed on each other until the old practices just aren't acceptable anymore so that over time you don't need that much in the way of regulation and lawsuits because people just aren't doing it public accommodations are a good example of a case in which you know it's extremely rare now to hear about discrimination in restaurants or lunch counters or nightclub every once in a while you hear about it but that's not a significant social problem the law worked and it worked remarkably well and remarkably quickly because it was the right law targeted at the right kind of problem so that the whole apparatus and total and cultural support system just kind of crumbled I hope that we could find similarly well-targeted solutions for some of these problems that now look really intractable because they're different in significant ways than public accommodations discrimination was and right now we're kind of treating them all similar and we've had great success in public accommodations but employment not so hot housing terrible terrible results and so maybe that should make us think we need another policy approach to kind of begin the virtuous cycle thank you okay so I just wanted to thank everyone for coming out this afternoon to hear Professor Ford and a huge thank you to Professor Ford for your talk so we have some I'm not gonna tell you what it is but but maybe you want to use it for your book signing which which is actually gonna take place right outside here outside of 283 the bookstore is staffed so there are copies of Professor's book Universal Rights don't know down under rights down to earth yeah I know me too that's I was hoping you could help me so books are for purchase you can use cash credit card if you're a student you can use your student ID and then Professor Ford will be seated outside to sign them so if you wanted to catch him and say a few words outside will be the great best place to do it but I've got to keep him on schedule so so thank you all for being here this afternoon thank you