Column: The ‘Serial’ Podcast and Disparate Impact: Civil Rights and the Real World (New York Law Journal)

With the Supreme Court having announced last month that it will take up momentous cases about same-sex marriage and the death penalty, the Court has positioned itself to be at the center of the country’s ongoing civil rights debate later this year. But for now, two other civil rights controversies occupy center stage, albeit on very different wings.

Last week the Court heard arguments in a housing discrimination case that on its face appears to present a dry issue of statutory interpretation but in truth cuts to the core of federal law’s relevance to race discrimination. Meanwhile, about as removed from the Supreme Court as one can get, millions of Americans have been immersed in a podcast that has explored the investigation into the 1999 murder of a Baltimore high school student and the subsequent conviction of a classmate now serving a life sentence. Though wildly different, these two controversies raise a common question: How important are the courts and law to civil rights in the real world?

The “Serial” Civil Rights Tsunami
Far, far away from the Supreme Court, a controversy is raging over Adnan Syed, a Muslim teenaged boy convicted in 2000 of having murdered Hae Min Lee, a Korean girl who was a classmate and former girlfriend. Last year, after being contacted by a family friend of Adnan’s, radio journalist Sarah Koenig conducted a lengthy investigation into the case, which led to the “Serial” podcast that concluded in December.¹ (A podcast is a recording that can be downloaded to a computer, smartphone, or other device and then listened to.)

For those who have not heard the podcast, a brief recap is in order. Hae disappeared on January 13, 1999, after leaving Woodlawn High School in Baltimore County at the end of the school day. Nearly a month later her body was found buried in a Baltimore area park not far from the school. Working from records they had obtained about Adnan’s cell phone after receiving an anonymous call implicating him, police were led to Jay Wilds, a black man who had recently graduated from Woodlawn. Jay told police that Adnan had killed Hae and then enlisted Jay to help bury her body in the park. Jay also took the police to Hae’s car, which had been missing since her disappearance. Shortly thereafter, police arrested Adnan. Relying on Jay’s testimony and the cell-phone records, prosecutors in 2000 obtained a murder conviction from a jury that deliberated for just a few hours. Adnan, who did not testify at trial, was sentenced to life in prison.

During the podcast, Koenig devotes herself to trying to figure out if Adnan is innocent. She explores a wide range of issues, including the fragility of memory, the propriety of police interrogation tactics, the personal lives of many of the young people who were friends of the victim and suspects, the shifting stories told by Jay, the intricacies of cell-phone technology, the strengths and weaknesses of various theories establishing the identity of the killer, and the actions of the prominent defense counsel hired by Adnan’s family. As part of her investigation, Koenig tracked down and interviewed many people connected to the case, including Adnan, whose lengthy recorded jail calls with Koenig form the spine of the podcast. Significantly, however, she was unable to interview Jay, the prosecutor, the defense lawyer (who was disbarred in 2001 and died in 2004), or anyone from Hae’s immigrant family. One camp ardently believes that Adnan is innocent; another seems to feel just as strongly that he is the killer.

“Serial” generated enormous public attention over the course of its twelve weekly episodes, which concluded on December 11. By November it had been downloaded 5 million times from iTunes and reportedly had a weekly listenership of 1.5 million, making it the most popular podcast in the history of the medium.

More significantly for my purposes, “Serial” unleashed a spirited and wide-ranging civil rights debate on the Internet. Most significantly, the discussion forum Reddit, which is enormously popular with young people, exploded with commentary from tens of thousands of people who debated and investigated every aspect of the case, many of which the podcast had not addressed.² That debate grew only louder after the podcast ended when a left-wing website published dramatic interviews with Jay (telling a materially different story than the one he had told at trial)³ and then with the prosecutor that were critical of Adnan and Koenig, only to be followed by a right-wing website publishing an interview with an alibi witness for Adnan who claimed the prosecutor had lied in court about the witness and who has recently agreed to testify on Adnan’s behalf.⁴

“Serial” raises compelling questions about a whole host of important legal issues, but what I find most significant about the podcast is the deep reservoir of interest in civil rights issues and justice that it tapped into. The Reddit forum contains thousands of posts from people who have pored over cell-phone records, architectural drawings, satellite photos, police interview notes, and court transcripts; who have driven around Baltimore examining parking lots, cell-phone towers, and mosques; who have reviewed research about memory, motive, and strangulation; and who have grappled with the nuances of search-and-seizure law, burdens of proof, cross examinations, qualification of trial experts, defense trial strategy, new trial motions, and appellate practice.

None of this has anything to do with a Supreme Court case, a legislative battle, or a novel legal theory, and therein lies the lesson. If a podcast can cause millions of young Americans to think seriously about flawed police investigations, about the unreliability of witness memories, about the limits of technical evidence, about the shortcomings of defense counsel, and about the abuses of prosecutors – all in the context of a Muslim criminal defendant accused of strangling a popular Korean girl – that is enormously valuable in advancing the cause of civil rights. A new media experience that can inform and energize the public — a public that may include parents, teachers, journalists, jurors or even future lawyers, legislators, and judges — about civil rights and justice may be far more important to creating a just society than most cases, statutes, or civil rights lawyers ever will be.

Increasingly Irrelevant Intentional Discrimination
While “Serial” dramatically illustrates the passionate interest in civil rights outside the familiar confines of the legal world, the case presented to the Supreme Court two weeks ago illustrates how the law risks rendering itself irrelevant to core civil rights issues, in this instance race discrimination. That case involves a federal anti-discrimination statute and a long-running debate over the reach of such statutes beyond intentional discrimination.

At issue in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc⁵ is the federal Fair Housing Act (FHA) and the question whether private litigants can bring suit under the statute for housing-related actions that do not amount to intention racial discrimination but nonetheless adversely affect racial minorities. Thus, to take a simple example, it is undisputed that a local ordinance dictating that blacks could live only in a remote area would implicate the FHA. By contrast, in dispute is whether an ordinance limiting low-income housing to the same remote area would similarly implicate the FHA because, even if not enacted with racist intent, it would have a disparate impact on blacks because they are more likely to live in the low-income housing.

The legal controversy over intentional-discrimination versus “disparate impact” claims under federal anti-discrimination statutes arises from the general structure of these statutes. Typically, the statutes by their terms bar racial discrimination generally and in a separate section authorize promulgation of regulations to implement the statute. Executive branch agencies in turn have issued wide-ranging regulations that expressly bar actions that have the intent or effect of discriminating against protected groups.

For thirty years, the federal courts accepted this scheme, and civil-rights organizations were able to bring and prevail on disparate-impact claims in many areas, including education, policing, and housing. But that ended abruptly in 2001, when the Supreme Court addressed the availability of disparate-impact claims under Title VI of the Civil Rights Act of 1964, the federal statute that bars race discrimination by recipients of federal funds.

At issue in Alexander v. Sandoval⁶ was an Alabama policy (spurred by a 1990 amendment to the state constitution making English the state’s official language) requiring applicants for driver’s licenses to pass examinations administered only in English. The policy was challenged under Title VI’s disparate-impact regulation, which had been promulgated pursuant to a general anti-discrimination provision in the statute itself. Despite three decades of Supreme Court and Court of Appeals law recognizing similar claims, the Supreme Court ruled in Alexander that disparate-impact claims under Title VI were invalid in the absence of a statutory provision clearly authorizing such claims:

Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.

Beyond ending Title VI disparate-impact litigation against recipients of federal funds, Alexander cast a dark cloud over the entire disparate-impact realm, including over disparate-impact claims brought under the FHA. Thus, while housing advocates have continued to bring such clams, they on two recent occasions scrambled to resolve FHA disparate-impact cases taken by the Supreme Court for review to keep the Court from reaching the issue.

That strategy could only last so long, however, and the issue is now squarely before the Court with Texas Department of Housing. The civil-rights community has been bracing itself for a disastrous ruling in the case, though a glimmer of hope emerged from the oral argument. As has been widely reported, Justice Antonin Scalia – viewed as an almost certain vote in favor of extinguishing FHA disparate-impact claims – indicated during argument on January 21 that he believed the overall statutory scheme did authorize such claims. In addressing the lawyer for Texas and discussing the original 1968 statute and subsequent amendments, he stated, “I find it hard to read these two together in any way other than there is such a thing as disparate impact.”

How the Court resolves this issue remains to be seen, but what bears emphasizing now is the enormous importance of the larger debate about disparate-impact claims. The major anti-discrimination statutes, like the FHA and the Civil Rights Act of 1964, were enacted in an era when intentional and de jure discrimination were pervasive in the United States. Whether one thinks about education, employment, housing, transportation, or public accommodations, our society was one in which blacks and other minorities were the victims of express and official discrimination.

That world no longer exists. Rather, we now live in one where discrimination, while still enormously damaging, is hidden and subtle. Laws expressly barring disadvantaged groups from education, housing, and employment have been replaced by elaborate schemes that on their face are silent about race but that in operation have clear and predictable consequences for those groups.

Given the world we now occupy, the statutory interpretation dispute in the Supreme Court about “disparate impact” claims in truth is a debate about the extent to which the law will continue to play a meaningful role in reforming civil rights abuses in the real world. Simply put, a legal regime limited to intentional racial discrimination is a regime that will be rendered irrelevant to the discrimination that still pervades too much of our society.

Dunn is the associate legal director of the New York Civil Liberties Union and is an adjunct professor teaching in the Civil Rights Clinic of the NYU School of Law.

Footnotes
1 The podcast is available at serialpodcast.org
2 The Reddit forum set up to discuss “Serial” is at www.reddit.com/r/serialpodcast
3 https://firstlook.org/theintercept/2014/12/29/exclusive-interview-jay-wilds-star-witness-adnan-syed-serial-case-pt-1
4 http://www.theblaze.com/stories/2015/01/20/exclusive-potential-alibi-witness-for-convicted-murderer-in-serial-breaks-silence-with-new-affidavit
5 13-1371.
6 532 U.S. 275 (2001).