Law Commons^™

Closing The Door On Human Dignity: How The Supreme Court Blocked The Path To Relief For Victims Of Title Ix Discrimination, Bailey Wylie

The Scholar: St. Mary's Law Review on Race and Social Justice

This comment exposes the far-reaching consequences of Cummings v. Premier Rehab Keller and scrutinizes the Supreme Court’s reliance on contract law principles to deny victims of discrimination recovery of non-economic damages.

For almost 50 years, courts have awarded emotional distress damages to victims of discrimination. Consequently, the Court’s lack of notice argument within Cummings falls flat through a cursory analysis of precedent. In the context of Title IX discrimination, school districts are undeniably aware of the possibility of sexual harassment liability at the time they accept federal funding. Mandated Codes of Conduct explicitly prohibit sexual harassment and outline ramifications for …

Respecting The Identity And Dignity Of All Indigenous Americans, Bill Piatt

Faculty Articles

The United States government attempted to eliminate Native Americans through outright physical extermination and later by the eradication of Indian identity through a boarding school system and other "paper genocide" mechanisms. One of those mechanisms is the recognition of some Natives but not the majority, including those who ancestors were enslaved. The assistance provided to recognized tribes by the government is inadequate to compensate for the historical and continuing suffering these people endure. And yet the problem is compounded for those unrecognized Natives whose ancestors were enslaved and whose tribal identity was erased. They are subjected to a double-barreled discrimination. …

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

Faculty Articles

All of Texas was once part of Mexico. Texas has never forgotten it. This is the historical basis for much of the Texas Latino population's struggle for equal educational opportunities. This article will discuss those struggles endured by the Latino population in their quest for equal educational opportunity from the time of Texas's entry into the Union in 1845 to present-with greater emphasis on the last half century. In each Section, I will briefly describe the history of discrimination against Mexican- Americans in that segment of education history and the relationship between the developments in that segment of education history …

Immigrating While Trans: The Disproportionate Impact Of The Prostitution Ground Of Inadmissibility And Other Provisions Of The Immigration And Nationality Act On Transgender Women, Luis Medina

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Homosexual Law And Policy In The Military: "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" . . . Don't Be Absurd!, Debra A. Luker

The Scholar: St. Mary's Law Review on Race and Social Justice

The violent murder of Army Private First Class Barry Winchell, a suspected homosexual, is a gruesome example of how the military does not tolerate homosexuals. The military’s current homosexual policy – referred to as Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass – is ineffective. The policy creates an atmosphere of intolerance that leads to discrimination among homosexual service members, and this discrimination often has violent ends. This comment analyzes the ways other countries implement policies for their homosexual service members, and also offers proposals to improve the current homosexual policy in the United States. The author discusses how the …

No Un Jurado De Mis Pares: Juror Exclusion Of Limited English Proficient Speakers., Michael Mccann

The Scholar: St. Mary's Law Review on Race and Social Justice

In the context of fulfilling civic duties as a citizen, accessibility to language assistance programs ensures every individual, including those with limited English proficiency (LEP), is afforded the opportunity to exercise their fundamental rights. Preservation of the integrity of the justice system must be provided in a comprehensive manner, not merely in one part of the legal proceedings or isolated to one part of the courthouse. LEP citizens should be integrated in public society, not disqualified from it. Statutes that create overly burdensome language proficiency standards create problems with the jury selection process. These standards limit and often deny LEP …

Corporate Boardroom Diversity: Why Are We Still Talking About This?., Lawrence J. Trautman

The Scholar: St. Mary's Law Review on Race and Social Justice

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for any organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate these skills necessary …

The New Voter Suppression: Why The Voting Rights Act Still Matters., Michael Ellement

The Scholar: St. Mary's Law Review on Race and Social Justice

The Voting Rights Act of 1965 drastically transformed the ability of African Americans to exercise their right to vote in the South. The most influential policy under the Act was Section Five. This section instituted a new system of review for voting procedure changes in states with a history of racial discrimination. States subject to this section of the Voting Rights Act must get preclearance by submitting any changes to their voting laws to the United States Department of Justice or to the Federal District Court in the District of Columbia. Any law not cleared will not go into effect. …

The Underrespresentation Of Hispanic Women In The Science, Technology, Engineering, And Mathematics Fields: What Can Be Done To Curie The Problem., Elky Almaraz

The Scholar: St. Mary's Law Review on Race and Social Justice

Hispanic women comprise approximately eight percent of the United States’ population and represent the largest group of minority women. However, Hispanic women only make up approximately two percent of the science and engineering workforce. In contrast, Caucasian women form approximately one-third of the United States’ population and eighteen percent of the science, technology, engineering, or mathematics (STEM) workforce. Hispanic women begin a post-secondary education in STEM fields with a proportional interest to other gender or racial groups. However, they are far less likely to continue the coursework and ultimately earn a degree than their non-minority classmates. Schools and education officials …

In Times Of Medical Crisis: Inadequacy Of Legal Remedies Available To Sexual Minorities., A. Nicole Kwapisz

The Scholar: St. Mary's Law Review on Race and Social Justice

Society has become more tolerant and accepting of changes to the social order. Yet many people still feel the need to cover when in public. Covering is a practice of sexual minorities hiding who they really are for fear of judgment and stereotyping. The media portrayal of lesbian, gay, bisexual, and transgender (collectively LGBT) issues allows people to grow more comfortable and accepting of sexual minorities. In the climate of change and acceptance, many LGBT individuals choose to live their lives cover-free. However, refusing to downplay their stigmatized identities leads to routine denial of equal treatment. The rights of sexual …

Whores And Other Sex Slaves: Why The Equation Of Prostitution With Sex Trafficking In The William Wilberforce Reauthorization Act Of 2008 Promotes Gender Discrimination., Elizabeth Kaigh

The Scholar: St. Mary's Law Review on Race and Social Justice

Congress should vote to exclude the William Wilberforce Reauthorization Act from the Victims of Trafficking and Violence Protection Act (VTVPA).  The William Wilberforce Reauthorization Act concerns prostitution, whereas the VTVPA concerns human trafficking. Lawmakers dealing with sex trafficking and prostitution in the United States wrongly combine them as one unified activity. A significant difference between sex trafficking and prostitution concerns the consent of the women having sex. Nevertheless, it is unfair for states to strengthen prostitution laws on a federal level, which is what the William Wilberforce Reauthorization Act would do. The Act would effectively turn prostitution into a federal …

Refusal Clauses & Pro-Life Pharmacists: How Can We Protect Ourselves From Them., Minh N. Nguyen

The Scholar: St. Mary's Law Review on Race and Social Justice

The decades long pro-life and pro-choice debate recently broadened to now include controversy over reproductive contraception. This controversy stems from doctors refusing to participate in abortion procedures and other healthcare providers, such as pharmacists, declining to fill prescriptions for oral and emergency contraceptives. Pharmacists all over the United States claim religious and moral grounds for refusing to fill prescriptions from doctors and hospitals. This religious fundamentalism creates more than a minor inconvenience for women. The oral and emergency contraceptives in question include birth control pills and the morning after pill, both of which inhibit a woman’s ability to get pregnant. …

The Court Of Appeals For The Fifth Circuit 2003-2004 Insurance Decisions: A Survey And An Empirical Analysis, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided twenty-four insurance-related appeals between the survey period of June 2003 through May 2004. Those cases originated in nine federal district courts. The overwhelming majority of appeals concerned the interpretation and enforcement of insurance contracts. Barring one case of first impression, most involved very familiar procedural and substantive conflicts.

This year, federal preemption questions and conflicts over subject matter jurisdiction appeared in several cases. The Fifth Circuit also decided six class-action or class-certification cases, and the court decided two conflicts involving allegedly widespread racial and ethnic discrimination in the sale and marketing of various …

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez

St. Mary's Law Journal

Texas’s use of the Texas Assessment of Academic Skills (TAAS) test as an accountability program has had numerous negative and far-reaching effects on minorities. Today, students in Texas public schools first take the TAAS test in the third grade. Students continue to take a form of the TAAS test each year, with the exit-level assessment initially given in the eleventh grade. Students must pass all four sections–Mathematics, English, Science, and Social Studies–in order to graduate and receive their high school diploma. Although devised to effectively motivate students, schools, and teachers with the goal of enhancing educational standards, the TAAS test …

Insurance Contracts And Judicial Decisions Over Whether Insurers Must Defend Insureds That Violate Constitutional And Civil Rights: An Historical And Empirical Review Of Federal And State Court Declaratory Judgments 1900-2000, Willy E. Rice

Faculty Articles

Empirical findings suggest that extralegal factors, such as geographic location, ethnicity, gender, disability, perceived sexual orientation, and age of third-party victims, influence judicial decisions as to whether liability carriers must defend or reimburse the costs of defending various lawsuits. After the introduction, Part II of this article presents a brief discussion of state and federal declaratory judgment statutes and of the public policy behind liability and indemnification insurance contracts. Part III examines the origin and scope of insurers’ duty to defend, duty to pay legal expenses, and duty to reimburse litigation costs when third-party victims sue policyholders. Part IV argues …

Scaling Back The Ada: How The Sutton V. United Airlines Decision Affects Employees With Bipolar Disorder., Kevin Wiley Jr.

The Scholar: St. Mary's Law Review on Race and Social Justice

The Sutton v. United Airlines decision went too far in the Supreme Court’s effort to scale back the protections of the Americans with Disabilities Act (ADA).  Congress should review the Sutton decision and amend the ADA to consider disabilities as they exist without regard to mitigating measures based on the severity of the illness. To seek protection under the ADA, one must have a discernable disability, and one’s impairment must be diagnosed and disclosed to the employer. Disability, however, was not specifically defined in the ADA, and no agency or regulation has specifically defined disability for the courts to utilize …

Count The Brown Faces: Where Is The “Family” In The Family Law Of Child Protective Services, Ana M. Novoa

Faculty Articles

Can a system developed from intrusion into the lives of the poor be reconstituted to provide services that will nurture the quality of the lives of all children? If not, then the system should be scrapped and start over. 
Child Protective Services (CPS) has never recovered from its roots in distrust and discrimination against the poor and its mistaken defense of a false moral high-ground, which is perceived from the narrow focus of child-saving rather than on the legitimate and long term needs of children. The foster care system’s lack of concern for natural parents reflects centuries of a dual …

Same-Sex Harassment - The Next Step Up In The Evolution Of Sexual Harassment Law Under Title Vii Comment., Regina L. Stone-Harris

St. Mary's Law Journal

Women sexually harassed by male co-workers are protected by Title VII of the Civil Rights Act. Yet, men are not protected because the federal courts in the Fifth Circuit do not protect men who are sexually harassed by other men. Male victims of sexual harassment are protected if they live in another district which does offer Title VII protection to same-sex victims. But should geography dictate protection? The federal courts are currently split as to whether a claim of sexual harassment between members of the same gender is actionable under Title VII of the Civil Rights Act. In the absence …

Race, Gender, “Redlining,” And The Discriminatory Access To Loans, Credit, And Insurance: An Historical And Empirical Analysis Of Consumers Who Sued Lenders And Insurers In Federal And State Courts, 1950-1995, Willy E. Rice

Faculty Articles

Courts have failed to consistently remedy insurers’ and lenders’ discrimination against low-income individuals, women, and minorities. State and federal courts have tried to resolve disputes involving redlining, unequal access to capital, and insurance discrimination. Because of courts’ failures, Congress passed the Equal Credit Opportunity Act of 1974 (“ECOA”) and the Community Reinvestment Act of 1977 (“CRA”) to protect minorities and low income individuals. But the ECOA and CRA have not achieved their stated goals of eradicating either insurance or mortgage redlining.

In most states, the responsibility of enforcing federal fair-lending laws and eradicating all sorts of financial redlining is given …

The Women's Convention And The Equal Protection Clause Symposium - Human Rights In The Americas., Michael J. Corbera

St. Mary's Law Journal

This Article addresses whether the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because international treaties such as the Women’s Convention carry the same weight and are subject to the same treatment as U.S. federal law, the constitutionality of the Convention is dictated by U.S. jurisprudence. Part II of this Article outlines and discusses the origin and content of the Women’s Convention. Part III contains a historical review of gender jurisprudence in the United States, with particular emphasis on …

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

Fair Employement Of The Handicapped In Texas., Bennett L. Stahl

St. Mary's Law Journal

The Commission on Human Rights Act may help prevent discrimination against handicapped individuals and ensure they have adequate employment opportunities in Texas. Employment discrimination against handicapped individuals often happens because of unfair job qualifications, or fair qualifications they would be able to meet if employers made reasonable accommodations. Establishing legal mechanisms to ensure fair opportunity for handicapped citizens to obtain employment is a comparatively new goal of American jurisprudence. The Federal Rehabilitation Act in 1973 made significant progress in fair employment practices. Texas made more progress by establishing the Commission on Human Rights Act, which creates a commission in charge …