Law Commons^™

Assessing The Velocity, Scale, Volume, Intensity And “Creedal Congruence” Of Immigrants In Setting A Nation’S Admissions Policy, David Barnhizer

David Barnhizer

Table of Contents Death of the “Melting Pot” The Rejection of Assimilation and the Rise of “Identity Sects” Western Europe and the US Face Significant Challenges to Their Creeds and Cultures The Radicalizing Search for Identity and Meaning The Velocity, Scale and Difference of Migrant Entry Into Dissimilar Cultures Assimilation Is Not Easy Under the Best of Circumstances ISIS, al-Qaeda and The Old Man of the Mountain What Are the Creedal Values For Which Western Nations Should Expect Commitment from Immigrants and Citizens? “Warning! Do Not Approach!” Beyond Non-Assimilation to Cultural Transformation The Right to Preserve a “Cultural Ecosystem” The …

“Something Wicked This Way Comes”: Political Correctness And The Reincarnation Of Chairman Mao, David Barnhizer

David Barnhizer

Mao’s Red Guards and the “Wicked Wisdom” of Lesley Gore There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions …

Hands-Tied Hiring: How The Eeoc’S Individualized Assessment Is Taking Discretion Away From Employers’ Use Of Criminal Background Checks, Carrie Valdez

Cleveland State Law Review

This article argues that the 2012 EEOC Guidance should not be given deference by the courts. Specifically, the Guidance’s individualized assessment, which imposes a heightened requirement on employers to justify their background check policies, is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks, and the result will likely not be a …

What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.

Law Faculty Articles and Essays

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Cleveland State Law Review

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animusfocused jurisprudence for lifting the discrimination against the …

An Essay On “Framing” And Fanaticism: Propaganda Strategies For Linguistic Manipulation, David Barnhizer

David Barnhizer

In his brilliant classic, Propaganda, French philosopher Jacques Ellul explains that the stereotype—a key tool of propagandists--“helps [humans] to avoid thinking, to take a personal position, to form [their] own opinion.” The problem for a political system is that stereotypes do not require thought. They are “acquired by belonging to a group, without any intellectual labor.” Deborah Tannen describes what has occurred as the “Argument Culture”. In the “argument culture” we are fanatics, unable and unwilling to engage in the kinds of fact-based reasoned discourse that we always were told was at the core of the democratic system. Tannen observed …

"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer

David Barnhizer

James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, …

Family, Cubicle Mate And Everyone In Between: A Novel Approach To Protecting Employees From Third-Party Retaliation Under Title Vii And Kindred Statutes, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after an employee …

Global Health Law Norms And The Ppaca Framework To Eliminate Health Disparities, Gwendolyn R. Majette

Law Faculty Articles and Essays

This Article analyzes how PPACA constitutes framework legislation that complies with global health law norms protecting a right to health in its approach to the reduction of health care disparities for racial and ethnic minorities in the United States. Part I identifies the global health laws that impose a duty on the United States to eliminate health disparities for people of color. Part II analyzes the legislative framework that PPACA creates to protect the right to health and eliminate health care disparities. Finally, Part III concludes with my recommendations on future efforts to reduce and eliminate health care disparities for …

Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta

Cleveland State Law Review

The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …

Learning Disabilities And The Ada: Licensing Exam Accommodations In The Wake Of The Ada Amendments Act Of 2008, M. Patrick Yingling

Cleveland State Law Review

This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals …

Tailoring The Narrow Tailoring Requirement In The Supreme Court's Affirmative Action Cases, Luiz Antonio Salazar Arroyo

Cleveland State Law Review

In his first and only affirmative action decision since becoming the controlling member of the Supreme Court, Justice Kennedy, in Parents Involved in Community Schools v. Seattle School District No. 1, showed a possible willingness to go back to the looser, more contextualist view of the narrow tailoring requirement that the Court embraced when Justice Powell was the swing vote. This Article argues that regardless of whether Justice Kennedy actually was moving back toward a more contextualist approach to narrow tailoring, a shift away from the highly formalistic inquiry adopted by Justice O'Connor back to the looser contextual standard used …

From Reconstruction To Obama: Understanding Black Invisibility, Racism In Appalachia, And The Legal Community's Responsibility To Promote A Dialogue On Race At The Wvu College Of Law, Brandon Stump

Law Faculty Articles and Essays

This Note focuses on legal education in the United States and West Virginia in particular. Discussions on race, racism, and American law should take place in every legal classroom where race is relevant to the subject being discussed as a way to bridge gaps between communities. This is especially true for the West Virginia University College of Law ("College of Law"), which sits in the third whitest state in the country. The College of Law is the only law school in the state, and a majority of students at the College of Law are white and West Virginian. Thus, at …

Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.

Law Faculty Articles and Essays

In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public …

The Need To Prioritize The Affirmative Furthering Of Fair Housing: A Case Statement, Symposium: New Strategies In Fair Housing, James Robert Breymaier

Cleveland State Law Review

The affirmative furthering of fair housing involves racially and economically pro-integrative policies and programs to produce structural changes that expand housing choices and improve individual opportunities.

The Future Of Fair Housing And Fair Credit: From Crisis To Opportunity, Symposium: New Strategies In Fair Housing, John A. Powell, Jason Reece

Cleveland State Law Review

The following paper provides an assessment of the current housing and credit crisis from a racial justice lens. The paper explores how race was interwoven into the current crisis and demonstrates the racialized impacts of the housing and credit crisis. We also explore some of the current challenges facing fair housing in our society, presenting concepts and models of reform to promote true integration with opportunity. We close with a new paradigm for addressing fair housing in the future and utilizing the opportunities presented by this crisis to produce a fair housing opportunity and a just society for all.

Pregnant Employees, Working Mothers And The Workplace - Legislation, Social Change And Where We Are Today , Thomas H. Barnard, Adrienne L. Rapp

Journal of Law and Health

Accordingly, the focus of this Article is on the legal and social evolution resulting from the Civil Rights Act's prohibition of sex-based discrimination- and, in particular, pregnancy-related discrimination - in the workplace. Section II of this Article details the reluctance with which courts and employers initially extended workplace rights to women. Sections III and IV discuss Title VII's prohibition against "sex" discrimination and initial court hesitation to interpret that prohibition to include employees discriminated against on the basis of pregnancy. Sections V and VI provide an overview of federal and Ohio law granting pregnancy-related rights to women, including the PDA, …

New Strategies For Old Problems: The Fair Housing Act At 40, Symposium: New Strategies In Fair Housing, Jeffrey D. Dillman

Cleveland State Law Review

This article discusses the advances in fair housing since 1968 while analyzing the evidence of persistent discrimination and segregation. It looks at past strategies of the enforcement of the FHA by fair housing groups and the education and outreach performed by the groups. Additionally, the author provides commentary on the future of fair housing.

Jones V. Mayer Revisited, Symposium: New Strategies In Fair Housing, Mira Tanna

Cleveland State Law Review

This article revisits Jones v. Mayer. Jones v. Mayer, decided by the U.S. Supreme Court in 1968, was the first Supreme Court case to rule that the Civil Rights Act of 1866--which guarantees the same right of all citizens to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens--applies not only to actions of the state but also to private parties.

Substantial Equivalency And The Future Of Fair Housing In Ohio, Symposium: New Strategies In Fair Housing, G. Michael Payton, Matthew D. Miko

Cleveland State Law Review

This article reviews recent Ohio court decisions and discusses their potential impact on the continued certification of the state's fair housing law as “substantially equivalent.” It also addresses several responsive steps being taken by the Ohio Civil Rights Commission in order to re-establish the rights and responsibilities under the state's fair housing law.

Toward A Plain Meaning Approach To Analyzing Title Vii: Employment Discrimination Protection Of Transsexuals, Kevin Schwin

Cleveland State Law Review

The purpose of this Article is two-fold. First, this Article will discuss whether transsexuals should be protected at all from employment discrimination, and if so, whether protection should be accomplished through legislative or judicial means. Then, the Article will discuss each of the aforementioned approaches and advocate for a logical and consistent manner in which courts should decide cases under Title VII where a transsexual plaintiff alleges discrimination because of sex.

Rhetorical Neutrality: Colorblindness, Frederick Douglass, And Inverted Critical Race Theory, Cedric Merlin Powell

Cleveland State Law Review

Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O'Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways.

Stunning Trends In Shocking Crimes: A Comprehensive Analysis Of Taser Weapons, Shaun H. Kedir

Journal of Law and Health

In 2001, Westminster, Colorado police officers were dispatched to the home of a suicidal thirteen year-old girl who had barricaded herself in a bathroom. The young girl was mutilating her wrist with two butcher knives. When police officers forced their way into the bathroom, the emotionally disturbed girl charged at them with the two butcher knives while screaming, "Kill me! Kill me!." One of the officers deployed a Taser M26, a hand held conductive energy weapon, which fires two barbed darts up to a distance of thirty-five feet that then deliver an electric shock of 50,000 volts. The officer's Taser …

Interracial Marriage In The Shadows Of Jim Crow: Racial Segregation As A System Of Racial And Gender Subordination, Reginald Oh

Law Faculty Articles and Essays

This Essay works through essentialist language to reveal the multidimensional nature of racial segregation as a system of subordination. Specifically, it examines how racial segregation in public schools and laws prohibiting interracial marriage mutually reinforce racial and gender inequality. Part I discusses Brown and the traditional analysis of that decision as a case dealing with race, racial stigma, and equal educational opportunity. Part II reviews laws prohibiting interracial marriage, the reasoning and purpose behind these laws, and the Loving decision that rendered such laws unconstitutional. Part III then examines racial segregation in public schools as more than just a system …

Changing The Bathwater And Keeping The Baby: Exploring New Ways Of Evaluating Intent In Environmental Discrimination Cases, Browne C. Lewis

Law Faculty Articles and Essays

This paper is divided into four parts. Part one consists of a general overview of the problem of environmental discrimination. Part two gives a brief discussion of relevant Equal Protection jurisprudence. The section begins with a summary of general Equal Protection law. Then, the section analyzes the primary cases that established the foundation of modem-day Equal Protection doctrine. Part three examines the current application of the intent requirement in environmental discrimination cases. To that end, the section reviews the outcome of three of the early environmental discrimination cases, and speculates about the components that are necessary to prepare a successful …

Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch

Cleveland State Law Review

This article will explore the Federal Rules of Civil Procedure and their application in the granting or denial of certification in an employment discrimination class action. In doing so, this article will examine how the district court applied these rules in the Wal-Mart action, which resulted in the certification of the largest private class action suit in American history. Additionally, this article will consider the consequences of the Ninth Circuit's utilization of permissive and liberal standards and, alternatively, the consequences of incorporation of stricter standards from various other circuit courts and the possible result of denial of certification.

What You Don't Know Can Hurt You: The Importance Of Information In The Battle Against Environmental Class And Racial Discrimination, Browne C. Lewis

Law Faculty Articles and Essays

People across the country have witnessed the quality of their local environment decline in the name of progress but Lewis argues that tow-income and minority persons have observed the disproportionate placement of environmental hazards in their communities. That disparity has partially resulted from environmental discrimination based upon class and race. Acknowledging unequal treatment of low-income and minority persons has led to the development of the concept of "environmental justice. "

The premise of this Article is that, in order to effectively combat environmental discrimination, people must have access to quality information. Information may be used as a remedial measure. This …