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What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias
Erwin Chemerinsky
This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Susan Poser
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
Reconceptualizing The Harms Of Discrimination: How Brown V. Board Of Education Helped To Further White Supremacy, Angela Onwuachi-Willig
Reconceptualizing The Harms Of Discrimination: How Brown V. Board Of Education Helped To Further White Supremacy, Angela Onwuachi-Willig
Faculty Scholarship
For decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include …
From Louisville To Liddell: Schools, Rhetorical Neutrality, And The Post-Racial Equal Protection Clause, Cedric Merlin Powell
From Louisville To Liddell: Schools, Rhetorical Neutrality, And The Post-Racial Equal Protection Clause, Cedric Merlin Powell
Cedric M. Powell
As we commemorate the inspiring legacy of Minnie Liddell and countless liberation activists who struggled for substantive equality in education for generations, it is appropriate to reflect on the current state and future of urban education. The school desegregation (integration) movements in Louisville, Kentucky and St. Louis, Missouri can best be understood as two distinct permutations of the Process Theory. In Louisville, the process-orientation tilts toward individual choice—neighborhood schools are at the core of all of the discussions about student assignment plans. Conversely, in St. Louis, the seminal process initiative is charter schools. Neither processual outcome addresses the present day …