CHAPTER 6Civil Rights Class ActionsI.Executive SummaryFor over more than seven decades, class actions have been among the most powerfultools to secure civil rights in America.Brown, et al. v. Board Of Education, 347 U.S. 483 (1954), which declared schoolsegregation unlawful and arguably set the stage for the civil rights movement, was aclass action. The class in Brown consisted of plaintiffs from five states who alleged thatpreventing black students from attending white schools was a violation of the equalprotection clause, since – largely as a result of institutionalized racism – “separate”facilities were inherently unequal.In 1966, the Congress and judicial rule-making authorities crafted Rule 23 with theexpress goal of empowering litigants challenging systemic discrimination - particularlysegregation - to force courts to order widespread injunctive relief that would protectmembers of the class as a whole. Ever since, this provision remains as salient to theenforcement of federal civil rights statutes and constitutional claims as at its inception.For a multitude of reasons, class actions are often a tool of first resort by advocacygroups to remedy civil rights violations.Class actions in the civil rights context spanned numerous issues in 2022. Given thisbreadth of subject area, there were well over one hundred decisions in this space. Amidthese far-ranging claims and groups of individuals, one common theme continues to bewhether litigants can meet the commonality and typicality requirements of Rule 23 toestablish class certification.In combination with the relatively lenient standards favoring class certification as well asthe crafty engineering of pleadings that present common issues for resolution, 2022 sawcourt rulings where numerous civil rights classes were certified, as well as grants ofclass certification affirmed on appeal. Moreover, a growing trend is division of classesinto sub-classes to ensure the pertinent Rule 23 requirements are met, and improvingthe plaintiffs’ chances of success at the certification stage.One unique aspect of civil rights litigation is the fact that it lends itself to pro se plaintiffslitigating various stator claims. Decisions in this context revealed a trend towards classcertification denials. Another issue unique to this arena is the challenge that certainconduct is difficult to apply universally to claims and lack of evidence of alleged civilrights abuses.Given the volume of litigation in the civil rights area, as well as the frequency with whichclasses are granted, and new burgeoning issues that percolate (e.g., claims regardingCOVID-19, claims regarding the increased issue with homelessness, and others), it is97© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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