Civil Rights and Discrimination Commons^™

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

The Procedural Justice Industrial Complex, Shawn E. Fields

Indiana Law Journal

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

The Afterlife Of Confederate Monuments, Jess Phelps, Jessica N. Owley

Indiana Law Journal

As communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels—by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where laws …

Defining Disparate Treatment: A Research Agenda For Our Times, Deborah Hellman

Indiana Law Journal

Both statutory and constitutional laws prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits specifically defined. As a result, courts fill in these definitions and do so with consequential results. The boundaries they draw often determine whether or not a law, policy, or action constitutes disparate treatment on the basis of a legally protected trait. As disparate treatment calls for a significantly heavier burden of justification than does disparate impact, the key move putting laws, policies, and the acts of individuals into one category or the other happens in this definitional step.

Defining …

Mandating Board Diversity, Sung Eun (Summer) Kim

Indiana Law Journal

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who selfidentifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort …

Can Social Science Teach Congress New Tricks?: Addressing The Need For Educational Support Dogs In Classrooms, Elaina H. Wilson

Indiana Law Journal

In the United States, children with disabilities are afforded protections in three federal statutes: the Individuals with Disabilities Education Act; Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990. However, these laws fail to provide for educational support dogs in public schools, despite the common and successful use of educational support dogs in other countries. The success of educational support dogs abroad is not suprising, as recent waves of social science research make clear the benefits of dogs in schools, from increased productivity within the classroom to improved morale within the school community …

Bostock And Contact Theory: How Will A Single U.S. Supreme Court Decision Reduce Prejudice Against Lgbtq People?, Mantas Grigorovicius

Indiana Law Journal

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that antidiscrimination laws help to “lead and guide the folkways,” and this Comment explores how …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

First Amendment Freedoms Diluted: The Impact Of Disclosure Requirements On Nonprofit Charities, Bailie Mittman

Indiana Law Journal

Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially …

Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll

Indiana Law Journal

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …

Designing The Legal Architecture To Protect Education As A Civil Right, Kimberly J. Robinson

Indiana Law Journal

Although education has always existed at the epicenter of the battle for civil rights, federal and state law and policy fail to protect education as a civil right. This collective failure harms a wide array of our national interests, including our foundational interests in an educated democracy and a productive workforce. This Article proposes innovative reforms to both federal and state law and policy that would protect education as a civil right. It also explains why the U.S. approach to education federalism will require legal reforms by both levels of government to protect education as a civil right.

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility …

Title Vii And The Unenvisaged Case: Is Anti-Lgbtq Discrimination Unlawful Sex Discrimination, Ronald Turner

Indiana Law Journal

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment …

Gender Disparities In Plea Bargaining, Carlos Berdejo

Indiana Law Journal

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender …

Opioid Policing, Barbara Fedders

Indiana Law Journal

This Article identifies and explores a new, local law enforcement approach to alleged drug offenders. Initially limited to a few police departments, but now expanding rapidly across the country, this innovation takes one of two primary forms. The first is a diversion program through which officers refer alleged offenders to community-based social services rather than initiate criminal proceedings. The second form offers legal amnesty as well as priority access to drug detoxification programs to users who voluntarily relinquish illicit drugs. Because the upsurge in addiction to —and death from—opioids has spurred this innovation, I refer to it as “opioid policing.” …

The Compliance Process, Veronica Root

Indiana Law Journal

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Beyond The Numbers: Substantive Gender Diversity In Boardrooms, Yaron G. Nili

Indiana Law Journal

The push for gender diversity on public companies’ boards has been gaining traction. Advocacy groups, institutional investors, regulators, and companies themselves have all recognized the need for more diverse boards. However, gender parity is still absent from most public companies’ boards, and a significant number of companies still have no women on their boards.

Current public and academic discourse has focused on the number of women serving on the board and their percentage compared to men as the litmus test for gender diversity. However, academic studies and the public push for more diversity have mostly failed to account for another …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Indiana Law Journal

In “Opioid Policing,”1 Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times2 and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this Response …

Legitimacy And Protection Against Sexual Orientation Discrimination Under Title Vii, Matt Snodgrass

Indiana Law Journal

Until relatively recently federal courts have held that claims of discrimination based in sexual orientation fall beyond the purview of Title VII protection. Even after the landmark holding in Price Waterhouse that recognized discrimination based in sex stereotypes and subsequent amendment to Title VII, courts resisted “bootstrapping” sexual orientation claims with sex discrimination claims. The result has been a number of puzzling outcomes—for example, extending Title VII protection to gay men who received adverse employment treatment due to stereotypically “effeminate” mannerism but not to gay men who meet cultural standards of masculinity— rigidly applying the structure of protected categories in …

Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English

Indiana Law Journal

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the solution …

"A Few Bad Apples": How The Narrative Of Isolated Misconduct Distorts Civil Rights Doctrine, Chiraag Bains

Indiana Law Journal

In Parts I and II, I examine precedents involving the two broad topics with which this Essay began: policing and race, respectively. The narrative is perhaps more familiar in the policing context. Attorney General Jeff Sessions articulated it succinctly in a March 2017 memo ordering the reevaluation of all consent decrees the Justice Department had entered with police departments because “[t]he misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”4 The narrative applies with respect to race, as well, although it comes …

Ordinariness As Equality, Elise C. Boddie

Indiana Law Journal

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”

Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness. It discusses these points through the lens of a true …

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

Beyond "Best Practices": Employment-Discrimination Law In The Neoliberal Era, Deborah Dinner

Indiana Law Journal

Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of anti-discrimination ideals in the late twentieth century was intertwined with the de-regulation of labor and with cutbacks in the welfare state. The Article argues that even “best practices” to prevent employment discrimination are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and …

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Indiana Law Journal

This Article canvasses Myra Selby’s dynamic professional record, the federal judicial selection process under President Obama, and the Seventh Circuit. It ascertains that Selby is an exceptionally competent, mainstream prospect and that the appellate court requires all of its members to deliver justice. However, Republican senators did not collaborate, particularly after they had captured a Senate majority—a circumstance that this presidential election year aggravates. The last section, therefore, proffers recommendations for Selby’s prompt Senate consideration and confirmation.

"A Choice Of Weapons": The X-Men And The Metaphor For Approaches To Racial Equality, Gregory S. Parks, Matthew W. Hughey

Indiana Law Journal

The authors explore The X-Men comic as a metaphor for both racial discrimination in the United States and strategies for addressing such discrimination. In consideration of the recent rise in the shooting of people of color, particular African American men and women, at the hands of law enforcement officers, an increasingly vocal and aggrieved segment of the white populace in the form of the “alt right,” and a presidential candidate that both implicitly and explicitly deploys “law and order” and racist appeals for particular social and political changes, we appear to once again stand at an important crossroads in American …

The Sons Of Indiana: Kappa Alpha Psi Fraternity And The Fight For Civil Rights, Gregory S. Parks, Wendy Marie Laybourn

Indiana Law Journal

The common narrative about African Americans’ quest for social justice and civil rights during the twentieth century consists, largely, of men and women working through organizations to bring about change. The typical list of organizations includes, inter alia, the National Association for the Advancement of Colored People, the National Urban League, the Southern Christian Leadership Conference, and the Student Nonviolent Coordinating Committee. What are almost never included in this list are African American collegiate-based fraternities. However, at the turn of the twentieth century, a small group of organizations emerged founded on personal excellence, the development and sustainment of fictive-kinship ties, …

Rfras And Reasonableness, Steve Sanders

Indiana Law Journal

The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require …

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Parents Involved And The Struggle For Historical Memory­, Mark Tushnet

Indiana Law Journal

In his Jerome Hall Lecture, Professor Tushnet addresses the legacy of Brown v. Board of Education in the more recent case of Parents Involved in Community Schools v. Seattle School Dist. No. 1 (PICS), which struck down the voluntary school integration programs used in Seattle and Louisville. As Chief Justice Roberts wrote, an important “debate” in the PICS case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory. The politics of memory in PICS is not simply a struggle …