Law Commons^™

Evading A Race-Conscious Constitution, Cara Mcclellan

All Faculty Scholarship

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support …

Enhancing Deaf People’S Access To Justice In Northern Ireland: Implementing Article 13 Of The Un Convention On The Rights Of Persons With Disabilities, Bronagh Byrne, Brent Elder, Michael Schwartz

College of Education Faculty Scholarship

Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) specifies that disabled people have the right to ‘effective access to justice’ on an equal basis with others. This includes Deaf people. There is a distinct lack of research which explores the extent to which Article 13 UNCRPD is implemented in practice and which actively involves Deaf people in its implementation and monitoring. This paper shares findings from a rights-based research study co-produced with a Deaf Advisory Group and a Deaf-led organisation. It explores the implementation of Article 13 UNCRPD in Northern Ireland through the …

Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc Tizoc Gonzaléz, Sarudzayi M. Matambanadzo, Sheila I. Velez Martinez

Articles

LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.

Leadership Lapse: Laundering Systemic Bias Through Student Evaluations, Debra S. Austin

Sturm College of Law: Faculty Scholarship

This article discusses how law schools' use of student evaluation of teaching (SET) for high-stakes faculty employment decisions amounts to a lapse in leadership because using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.

Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez

Articles

As LatCrit reaches its twenty-fifth anniversary, we aspire for this symposium Foreword to remind its readers of LatCrit’s foundational propositions and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. Working for lasting social change from an antisubordination perspective enables us to see the myriad laws, regulations, policies, and practices that, by intent or effect, enforce the inferior social status of historically- and contemporarily-oppressed groups. In turn, working with a perspective and principle of antisubordination can inspire us to …

Would The Ada Pass Today?: Disability Rights In An Age Of Partisan Polarization, Laura Rothstein

Brandeis School of Law Faculty Scholarship

The Americans with Disabilities Act of 1990 (ADA) was the most significant civil rights legislation enacted since the Civil Rights Act of 1964. It provided comprehensive protection against discrimination for individuals with disabilities in employment, public accommodations, and public services. It built on § 504 of the Rehabilitation Act that provided these protections only to programs receiving federal financial assistance. It afforded broad access to those individuals who had benefitted from the 1975 Individuals with Disabilities Education Act. This complex and far-reaching legislation was made possible by a confluence of timing and the right people at the right place at …

Patent Law, Copyright Law, And The Girl Germs Effect, Ann Bartow

Law Faculty Scholarship

[Excerpt] "Inventors pursue patents and authors receive copyrights.

No special education is required for either endeavor, and nothing

precludes a person from being both an author and an inventor.

Inventors working on patentable industrial projects geared

toward commercial exploitation tend to be scientists or engineers.

Authors, with the exception of those writing computer code, tend

to be educated or trained in the creative arts, such as visual art,

performance art, music, dance, acting, creative writing, film

making, and architectural drawing. There is a well-warranted

societal supposition that most of the inventors of patentable

inventions are male. Assumptions about the genders …

"All Areas Of Suspected Disability", Mark Weber

College of Law Faculty

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

"All Areas Of Suspected Disability", Mark Weber

College of Law Faculty

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

Discrimination Inward And Upward: Lessons On Law And Social Inequality From The Troubling Case Of Women Coaches, Deborah L. Brake

Articles

In the Title IX success story, women’s opportunities in coaching jobs have not kept pace with the striking gains made by female athletes. Women’s share of jobs coaching female athletes has declined substantially in the years since the law was enacted, moving from more than 90% to below 43% today. As a case study, the situation of women coaches contains important lessons about the ability of discrimination law to promote social equality. This article highlights one feature of bias against women coaches — gender bias by female athletes — as a counter-paradigm that presents a challenge to the dominant frame …

Common-Law Interpretation Of Appropriate Education: The Road Not Taken In Rowley, Mark Weber

College of Law Faculty

Thirty years old in 2012, Board of Education v. Rowley is the case that established a some-benefit or floor-of-opportunity standard for the services public school districts must provide to children who have disabilities. But the some-benefit approach is by no means the only one the Court could have adopted. It could have endorsed the view of the lower courts that each child with a disability must be given the opportunity to achieve his or her potential commensurate with the opportunity offered other children. Or it could have adopted a standard based on achievement of the child’s full potential or the …

An Assessment Of The Law School Climate For Glbt Students, Kelly Strader, Brietta R. Clark, Robin Ingli, M. Elizabeth Kransberger, Lawrence C. Levine, William Perez

McGeorge School of Law Scholarly Articles

Nationwide empirical research has assessed the law school climate for gay, lesbian, bisexual, and transgender (GLBT) students. The research shows that the climate for GBLT students at most law schools in the United States, particularly those in urban areas, has improved. The research also shows, however, that this group still encounters substantial discrimination on law school campuses and in law school class¬rooms. This discrimination may result from overt acts, thoughtlessness, and/or neglect on the part of various actors in law school communities. Whatever the cause, the result is that many GLBT students feel disenfranchised from their broader law school communities. …

Ballot Issues Education For The 2008 General Election - Initiative 424: Constitutional Amendment To Prohibit Discrimination Or Preferential Treatment, J. David Aiken, Bradley D. Lubben

University of Nebraska-Lincoln Extension: Historical Materials

On November 4, 2008, Nebraska voters will consider an amendment to the state constitution to ban many state or local government affirmative action programs (unless pending court challenges nullify the vote). The proposed constitutional amendment was brought forth by petition initiative and is modeled after similar language approved by voters in California (1996), Washington (1998), and Michigan (2006). Voters in Colorado will also face the same question this year on election day while similar efforts in Arizona, Missouri, and Oklahoma failed to reach the ballot.

Lessons Learned From Comparing The Application Of Constitutional Law And Anti-Discrimination Law To African Americans In The U.S. And Dalits In India In The Context Of Higher Education, Kevin D. Brown, Vinay Sitapati

Articles by Maurer Faculty

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country's population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% …

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …