Civil Rights and Discrimination Commons^™

Law Enforcement In Subordinated Communities: Innovation And Response, Richard Delgado

Michigan Law Review

Policing styles and policy reform today exhibit a ferment that we have not seen since the turbulent sixties. The reasons propelling reform include some of the same forces that propelled it then - minority communities agitating for a greater voice, demands for law and order - but also some that are new, such as the greater premium that society places on security in a post-9/11 world. Three recent books discuss this new emphasis on styles of policing. Each centers on policing in minority communities. Steve Herbert's Citizens, Cops, and Power: Recognizing the Limits of Community examines the innovation known as …

From Proposition 209 To Proposal 2: Examining The Effects Of Anti-Affirmative Action Voter Initiatives, Michigan Journal Of Race & Law

Michigan Journal of Race and Law

Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100

The Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon

Michigan Law Review First Impressions

The dirty little secret is out: people with more money get a better deal in our criminal justice system. Anyone who has spent more than a nanosecond in this system knows it to be true, yet that does not make it right. It is an abomination to divert our attention to pay-to-stay programs instead of finding the resources to improve our general jail facilities to make them tolerable for every inmate. Don’t get us wrong—if we suffered the misfortune of being arrested, we would dearly love the opportunity to pay for a private jail facility. However, the pay-to-stay initiative is …

The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker

Michigan Journal of Race and Law

The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of …

The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Michigan Journal of Race and Law

This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …

Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

The Fair Housing Act And Disparate Impact In Homeowners Insurance, Dana L. Kaersvang

Michigan Law Review

This Note argues that because homeowners insurance is central to homeownership, the FHA applies to insurance underwriting policies, such as those mentioned above, that have a disparate impact on minority potential homeowners. Part I considers whether the FHA applies to homeowners insurance and concludes that homeowners insurance is covered by the Act. Part II goes on to argue that the FHA applies to homeowners insurance even where the discrimination results from disparate impact, rather than from disparate treatment. Finally, Part III analyzes the above-mentioned policies of the insurance industry under the FHA disparate impact standard.

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly

Michigan Journal of Race and Law

This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …

Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford

Michigan Journal of Race and Law

This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth …

Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee

Michigan Journal of Race and Law

This Article begins by comparing the concerns of American racial profiling to current terrorism concerns. Part II is an overview of the Bank Secrecy Act and its role in privacy issues concerning bank customers (as the predecessor to the USA Patriot Act). Here, the value of traditional reporting devices, specifically CTRs and SARs used by banks to alert law enforcement to possible terrorist activities, are discussed and evaluated. The facts suggest these reports have been ineffective in identifying terrorists, and have not only greatly infringed upon First Amendment privacy rights, but also diminished the Fourth Amendment protection against warrant-less searches …

A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill

Michigan Journal of Race and Law

This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms …

Fair Representation On Juries In The Eastern District Of Michigan: Analyzing Past Efforts And Recommending Future Action, Andrew J. Lievense

University of Michigan Journal of Law Reform

This Note builds on past recommendations to reform jury selection systems to make juries more representative of the community. Juries representing a fair cross section of the community are both a statutory and constitutional requirement, as well as a policy goal. How a judicial district designs and implements its jury selection system is important to meeting this requirement.

Part I of this Note analyzes the history and development of the representativeness interest on juries, explains how the United States District Court for the Eastern District of Michigan attempted to meet this interest in the 1980s and 1990s, and reports and …

Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard

University of Michigan Journal of Law Reform

Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature …

Retrying Race, Anthony V. Alfieri

Michigan Law Review

This Essay investigates the renewed prosecution of long-dormant criminal and civil rights cases of white-on-black racial violence arising out of the 1950s and 1960s. The study is part of an ongoing project on race, lawyers, and ethics within the criminal-justice system. Framed by this larger project, the Essay explores the normative and sociolegal meaning of that resurgent prosecution. My hope in pursuing this inquiry is to better understand, and perhaps begin to refashion, the prosecutor's redemptive role in cases of racial violence. Both descriptive and prescriptive in nature, the inquiry addresses race in relation to law and community. Grappling with …

White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado

Michigan Law Review

I had just settled down, taken off my tie, and was about to go over the two-page handout entitled "Information for Wedding Parties " that the minister of the small church had handed me minutes earlier, when I heard a knock and familiar voice from the other side of the anteroom door.

Emotional Segregation: Huckleberry Finn In The Modern Classroom, Sharon E. Rush

University of Michigan Journal of Law Reform

In this article, I explore emotional segregation and how it functions in the context of Huckleberry Finn for both personal and academic reasons. Recently, I read Huckleberry Finn because it had been assigned to my daughter's middle school class. I was concerned for her welfare because she is Black and worried how the book would affect her. To understand her reactions, I had to understand the controversy surrounding the book, particularly as a White mother I have reflected quite deeply on the question whether the book is racist. I define "racism" as a belief in the myth of White superiority …

Expressivism, Empathy And Equality, Rachel D. Godsil

University of Michigan Journal of Law Reform

In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …

In The Supreme Court Of The United States Barbara Grutter, Petitioner, V. Lee Bollinger, Et Al., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit, Jerome S. Hirsch, Joseph N. Sacca, Scott D. Musoff, Mark Lebovitch, Linda M. Wayner

Michigan Journal of Gender & Law

Brief of the University of Michigan Asian Pacific American Law Students Association, the University of Michigan Black Law Students' Alliance, the University of Michigan Latino Law Students Association, and the University of Michigan Native American Law Students Association as Amici Curiae in Support of Respondents

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …

Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Barnes

Michigan Law Review

Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today . . . the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that. " Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It …

Vigilante Racism: The De-Americanization Of Immigrant America, Bill Ong Hing

Michigan Journal of Race and Law

Sadly, the de-Americanization process is capable of reinventing itself generation after generation. We have seen this exclusionary process aimed at those of Jewish, Asian, Mexican, Haitian, and other descent throughout the nation's history. De-Americanization is not simply xenophobia, because more than fear of foreigners is at work. This is a brand of nativism cloaked in a Euro-centric sense of America that combines hate and racial profiling. Whenever we go through a period of de-Americanization like what is currently happening to South Asians, Arabs, Muslim Americans, and people like Wen Ho Lee-a whole new generation of Americans sees that exclusion and …

"Just Like One Of The Family": Domestic Violence Paradigms And Combating On-The-Job Violence Against Household Workers In The United States, Kristi L. Graunke

Michigan Journal of Gender & Law

This Article argues that the immense problem of on-the-job abuse experienced by domestic workers demands a multifaceted plan of attack. The proposed responses specifically draw upon the capacities, strengths, and resources of women, particularly comparatively privileged women, as both activists and employers of domestic workers. By describing the circumstances of domestic work in the United States from the nation's inception to the present, Part I demonstrates the prevalence and intractability of on-the-job physical and sexual abuse and argues that other women, as employers of domestic workers, have historically played a complex role in participating in, condoning, or failing to acknowledge …

"I Will Not Sit Idly By While My Future Is Determined:" The Response Of The University Of Michigan Black Law Students' Alliance To Grutter V. Bollinger, Et Al., The Black Law Students' Alliance

Michigan Journal of Gender & Law

Back in 1998, the Michigan Journal of Gender & Law expressed support for the University of Michigan Law School's defense of its affirmative action policy, which is at controversy in Grutter v. Bollinger. Today, as in 1998, "[W]e certainly do not believe the Law School admissions policy truly addresses the inequalities within our law school and the legal profession generally. Legal education is unfortunately not a bastion of diversity." Women and students of color struggle to be heard and seen, and to achieve equal representation in both the study and practice of law. "Without active efforts, we cannot create …

The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu

Michigan Journal of Race and Law

This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.

Sexual Orientation And International Law: A Study In The Manufacture Of Cross-Cultural "Sensitivity", Eric Heinze

Michigan Journal of International Law

Interest groups advocating rights of sexual minorities have been lobbying international organizations for years without success. A standard explanation for that failure is that human sexuality is something complex, even mysterious, which requires that international organizations proceed with special caution. In this essay, it will be argued that such an explanation amounts to a self-fulfilling prophecy. Sexual orientation is neither more nor less complex than many other issues, such as race, ethnicity, religion or gender, which have nevertheless found wide recognition within leading intergovernmental organizations. It is not because sexual orientation is uniquely complex or mysterious that it is barred …

Striking A Sincere Balance: A Reasonable Black Person Standard For "Location Plus Evasion" Terry Stops, Mia Carpiniello

Michigan Journal of Race and Law

Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and …

Subtracting Race From The "Reasonable Calculus": An End To Racial Profiling? United States V. Montero-Camargo 208 F.3d 1122 (9th Cir. 2000) Cert. Denied Sub Nom, Elisabeth R. Calcaterra, Natalie G. Mitchell

Michigan Journal of Race and Law

This Case Note presents the facts of Montero-Camargo, describes the decision of the Ninth Circuit Court in historical context, and analyzes the effect of the Court's holding. The Case Note argues that while the Ninth Circuit's decision to prohibit the use of race as a factor in determining the reasonableness calculus in traffic stops is progressive in spirit, implementing the decision will be difficult. Thus far, mechanisms designed to limit officers' use of race in traffic stops have been ineffective and have left victims with little recourse, resulting in a disproportionate number of innocent African American and Latino drivers …

Blood Will Tell: Scientific Racism And The Legal Prohibitions Against Miscegenation, Keith E. Sealing

Michigan Journal of Race and Law

This article first examines the miscegenation paradigm in terms of a seven-point conceptual framework that not merely allowed but practically demanded anti-miscegenation laws, then looks at the legal arguments state courts used to justify the constitutionality of such laws through 1967. Next, it analyzes the Biblical argument, which in its own right justified miscegenation, but also had a major influence on the development of the three major strands of scientific racism: monogenism, polygenism and Darwinian theory. It then probes the concept upon which the entire edifice is constructed-race--and discusses the continuing vitality of this construct. Next, this article turns to …

Racial Profiling: "Driving While Mexican" And Affirmative Action, Victor C. Romero

Michigan Journal of Race and Law

This Essay will focus on "racial profiling" not just in the way many people think about the term-that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black"-but also in the context of "affirmative action"-namely, using race as a factor in employment and educational decisions. More broadly, then, the author wants us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual," which moves us slightly away from more pejorative notions of the phrase that have seeped into the national …

Life After Adarand: What Happened To The Metro Broadcasting Diversity Rationale For Affirmative Action In Telecommunications Ownership?, Leonard M. Baynes

University of Michigan Journal of Law Reform

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court …