Law Commons^™

Separate But Free, Joshua E. Weishart

Law Faculty Scholarship

“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.

This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, …

'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Much Critical commentary concerning the so-called "divisive concepts" provisions in this year's budget legislation has focused on their restrictions on speech. These restrictions, among other things, forbid public K-12 teachers from instructing that some persons are "inherently superior or inferior to [others]", "inherently racist or sexist," "should be discriminated against," or "should not attempt to treat others equally" because of their "age, sex gender identity, sexual orientation, race, creed, color, marital status, mental or physical disability, religion, or national origin."

New Hampshire's 'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or …

Health Care Civil Rights Under Medicare For All, Valarie K. Blake

Law Faculty Scholarship

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. …

Sex Discrimination In Healthcare: Section 1557 And Lgbtq Rights After Bostock, Amy Post, Ashley Stephens, Valarie K. Blake

Law Faculty Scholarship

Section 1557 of the Affordable Care Act (“ACA”) banned sex discrimination in health care. In June of 2020, however, the Trump administration finalized a rule that explicitly removed sexual orientation and gender identity from Section 1557’s safeguards. That same month, the Supreme Court held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination in Bostock v. Clayton County. Following the Court’s decision in Bostock, this Article argues that sex discrimination under Section 1557 necessarily encompasses gender identity and sexual orientation discrimination.