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[Dis]Integration: Second-Order Diversity And Schools, Anders Walker Mar 2019

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

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This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.


Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker Jan 2019

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

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Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.


Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz Jan 2019

Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz

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Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule or private discrimination will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact ...


In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders Jan 2018

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

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I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and ...


New Takes On Jim Crow: A Review Of Recent Scholarship, Anders Walker Jan 2018

New Takes On Jim Crow: A Review Of Recent Scholarship, Anders Walker

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More than half a century has passed since C. Vann Woodward penned his iconic monograph, The Strange Career of Jim Crow, and legal segregation continues to compel. Recent works have reassessed Jim Crow’s birth, its life, and its aftermath, suggesting that the system was at once more implicated in the reproduction of racist ideas than had been previously assumed, and also more fluid: a variegated landscape of rules and norms that lent themselves to various forms of political, legal, and cultural resistance.


Lessons From Ferguson And Beyond: Bias, Health, And Justice, Sidney D. Watson Jan 2017

Lessons From Ferguson And Beyond: Bias, Health, And Justice, Sidney D. Watson

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August 9, 2014, Michael Brown, an 18-year-old African American teen, killed by police in Ferguson, Missouri.

November 22, 2014, Tamir Rice, a 12-year-old African American child, killed by police in Cleveland, Ohio.

April 4, 2015, Walter Scott, a 50-year-old African American man, killed by police in Charlotte, North Carolina.

November 15, 2015, Jamar Clark, a 24-year-old African American man, killed by police in Minneapolis, Minnesota.

July 6, 2016, Philando Castile, a 32-year-old African American man, killed by police in Falcon Heights, Minnesota.

The list of Black men and women killed by police goes on and seems to grow by the ...


Religious Privilege To Discriminate As Religious Freedom: From Charitable Choice To Faith Based Initiatives To Rfra And Fada, Marcia L. Mccormick Jan 2017

Religious Privilege To Discriminate As Religious Freedom: From Charitable Choice To Faith Based Initiatives To Rfra And Fada, Marcia L. Mccormick

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The movement for Lesbian, Gay, Bisexual, Transgender, Queer, Inter-sex, and Asexual (LGBTQIA) rights has had three main themes since the civil rights era: freedom from criminalization of relationships and harassment by police; protection from discrimination in employment, housing, public ac-commodations, and government services; and civil protections for familial re-lationships, like the right to marry.[1] Freedom from criminalization of inti-mate relationships was won in 2003, when the Supreme Court held that the federal constitution protected same-sex intimate conduct and that states could not make that conduct criminal,[2] and that decision accelerated the fight for civil protections for familial relationships ...


Sterotypes As Channels And The Social Model Of Discrimination, Marcia L. Mccormick Jan 2017

Sterotypes As Channels And The Social Model Of Discrimination, Marcia L. Mccormick

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No abstract provided.


Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren Jan 2017

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

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The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the ...


The Persistence Of The Confederate Narrative, Peggy Cooper Davis, Anderson Francois, Colin Starger Jan 2017

The Persistence Of The Confederate Narrative, Peggy Cooper Davis, Anderson Francois, Colin Starger

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Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. We analyze the relationship, over time, between assertions of civil rights and calls for the protection of local autonomy and control. This analysis reveals a troubling sequence: the Confederate narrative was shamefully intertwined with the defense of American chattel slavery. It survived profound ...


Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby Jan 2016

Missing The “Target”: Preventing The Unjust Inclusion Of Vulnerable Children For Medical Research Studies, Ruqaiijah A. Yearby

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Nearly everyone has experienced a burn and the resulting pain. Now imagine that you suffer a third-degree radiation burn that injures all the layers of your skin as well as the tissue, causing you extreme pain. . The burn turns your skin white, cherry red, or black and may produce blisters that are dry, hard, and leathery-looking. The burn can also be seen on the surface of your lungs and gastrointestinal tract. If the burn is big enough you will need skin grafts and surgery to replace the skin and tissue that will never grow back, as well as treatment to ...


Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar Jan 2016

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

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Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the ...


Teaching "Ferguson", Chad Flanders Nov 2015

Teaching "Ferguson", Chad Flanders

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What we now refer to simply as "Ferguson" erupted in August of 20T4 and immediately raised a cluster o f legal issues. What crime had Michael Brown allegedly committed? Did Officer Darren Wilson commit a crime when he shot at Brown? Protests ensued, and they in turn inspired a police response, a response that seemed to many more violent than the protests themselves. What of the First Amendment rights o f the protesters and o f the journalists covering them? What laws were they-protestors and some journalists-supposedly breaking?1

As the days and weeks passed, the legal issues multiplied, and ...


The Obese And The Elite: Using Law To Reclaim School Sports, Dionne L. Koller Apr 2015

The Obese And The Elite: Using Law To Reclaim School Sports, Dionne L. Koller

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Sports in schools are a uniquely American phenomenon. Athletic programs flourish in high schools, colleges, and universities with traditionally very little interference by legislatures or courts. The most notable, if not limited, exception to this deference is Title IX of the Civil Rights Act of 1964 (Title IX), which prohibits educational institutions receiving federal financial assistance from discriminating on the basis of gender. As applied to athletic programs, Title IX is often cited as a public policy success. The law has led to the creation of meaningful sports participation opportunities for women and girls and shaped new norms for sports ...


Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick Jan 2015

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

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The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations ...


Jim Crow's Unwritten Code, Anders Walker Jan 2015

Jim Crow's Unwritten Code, Anders Walker

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In The Jim Crow Routine, historian Stephen Berrey brings fresh eyes to the intricate set of legal rules that maintained racial segregation in the American South. Building on works like Leon Litwack’s Trouble in Mind: Black Southerners in the Age of Jim Crow and Neil R. McMillen’s Dark Journey: Black Mississippians in the Age of Jim Crow, Berrey focuses not on the rise or demise of Jim Crow so much as the manner in which it disciplined daily life. For average folks, argues Berrey, Jim Crow turned the South into a stage where whites and blacks learned to ...


What Patients With Disabilities Teach Us About The Everyday Ethics Of Health Care, Elizabeth Pendo Jan 2015

What Patients With Disabilities Teach Us About The Everyday Ethics Of Health Care, Elizabeth Pendo

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In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What PatientsTeach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at theeveryday experience of health care and the relationships that shape it. This article expands upon that inquiry by exploring the experiences and challenges of patients with disabilities and by exploring what patients withdisabilities can teach us about the everyday ethics of health care.

The authors of What Patients Teach provide a framework in which to focus on the everyday experience ofhealth care from the perspective of patients. This ...


Diversity As A Law School Survival Strategy, Aaron N. Taylor Jan 2015

Diversity As A Law School Survival Strategy, Aaron N. Taylor

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Over the past few years, law schools have been dealing with a drastic and, so far, unyielding decline in student interest. Between 2010 and 2013, student enrollments fell almost 25%, to levels not seen in 40 years. This trend has prompted many to wonder what schools have done, and what they can do, to ensure their survivalin this new climate. This article explores the extent to which law schools have used students of color, particularly black and Hispanic students, to bolster enrollments and lessen the effects of the downturn. The results of this analysis suggest that a school’s median ...


Poverty, Dignity, And Public Housing, Jaime Alison Lee Jan 2015

Poverty, Dignity, And Public Housing, Jaime Alison Lee

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Antipoverty efforts are persistently subverted by broad societal contempt for poor people. The belief that poor people are morally and behaviorally inferior, and that their personal failings are the cause of their own poverty, is a staple of American opinion polls and political rhetoric. This presumption is so widespread that it even permeates antipoverty programs, which treat poor people with disdain even as they offer aid and assistance.

Income discrimination creates not just social stigma, but legal inequalities. The Supreme Court recognized some forty years ago that welfare law promoted wealth-based Constitutional inequalities, and responded by invoking the doctrines of ...


Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick Jan 2015

Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick

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Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort,[1] makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases,[2] even having gone so far as to have called employment discrimination statutes federal torts.[3] This development has created significant concern among scholars,[4] including Professor Sperino herself.[5]

Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a ...


Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham Jul 2014

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

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This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need ...


The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt Apr 2014

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

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Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech ...


Race And Immigration, Then And Now: How The Shift To "Worthiness" Undermines The 1965 Immigration Law's Civil Rights Goals, Elizabeth Keyes Apr 2014

Race And Immigration, Then And Now: How The Shift To "Worthiness" Undermines The 1965 Immigration Law's Civil Rights Goals, Elizabeth Keyes

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This essay looks at how far immigration reform has come from the explicit civil rights character of the 1965 immigration law that reshaped America. The optimism surrounding that law’s dismantling of national-origins barriers to immigration proved to be overstated in the intervening decades, as the factors determining an immigrant’s “worth and qualifications” too often became proxies for race. After briefly looking at work done by critical race theorists tracing some of ways race and immigration have long intersected in immigration legal history, the article closely examines modern-day immigration reform proposals, particularly the Senate bill that remains the most ...


Academic Extremism Threatens Democratic Values (Commentary), Kenneth Lasson Jan 2014

Academic Extremism Threatens Democratic Values (Commentary), Kenneth Lasson

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Veritas vos liberabit, chanted the scholastics of yesteryear — "the truth will set you free." It's hard to see how that mantra could be echoed by latter-day counterparts in the academy. Consider the recent resolution by the American Studies Association that advocated an academic boycott of Israel. Its argument — that Israeli universities are complicit in state policies violating Palestinians' human rights — belies the truth: Israel has long been the most diverse, inclusive and tolerant of any Middle Eastern country.


Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin Jan 2014

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

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On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis states ...


The New Jim Crow? Recovering The Progressive Origins Of Mass Incarceration, Anders Walker Jan 2014

The New Jim Crow? Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

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This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or JimCrow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and massincarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.


A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker Jan 2014

A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker

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This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from ...


“To Corral And Control”: Stop, Frisk, And The Geography Of Freedom, Anders Walker Jan 2014

“To Corral And Control”: Stop, Frisk, And The Geography Of Freedom, Anders Walker

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This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national ...


House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker Jan 2014

House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker

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According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric ...


To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick Jan 2014

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

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This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity might ...