Civil Rights and Discrimination Commons^™

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

Toward Accessing Hiv-Preventative Medication In Prisons, Scott Shimizu

Northwestern University Law Review

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel …

Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson

University of Cincinnati Law Review

No abstract provided.

To Save Our Democracy, Stop Desantis’ Racist Education Crusade, Lewis Steel '63

Articles and Writings

No abstract provided.

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

Trans Animus, Scott Skinner-Thompson

Publications

No abstract provided.

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

Ethical Implications Of Ai-Based Algorithms In Recruiting Processes: A Study Of Civil Rights Violations Under Title Vii And The Americans With Disabilities Act, Vanessa Rodriguez

Cyber Operations and Resilience Program Graduate Projects

This research paper analyzes the ethical implications of utilizing artificial intelligence, specifically AI-based algorithms in business selection and recruiting processes, with a focus on potential violations under Title VII of the Civil Rights Act of 1964 and Title 1 of the Americans with Disabilities Act (ADA). Amazon’s attempt at launching AI recruiting tools is examined. This paper will assess the fairness of AI recruiting practices, considering data collection, potential biases, and accuracy concerns in its implementation process. Additionally, the paper will provide an overview of federal civil rights statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and recent …

Remedying The Insular Cases: Providing Tribal Sovereignty To Unincorporated Territories To Ensure Constitutional Rights For All U.S. Nationals And Citizens, Allison Ripple

William & Mary Bill of Rights Journal

This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates …

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …

The Most Important Law You’Ve Never Heard Of: Section 1981 And Its Potential Social Justice Issues, Isaac Hampton Verhelst

The Reporter: Social Justice Law Center Magazine

No abstract provided.

(E)Racing Speech In School, Francesca I. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman

ConLawNOW

This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …

A New Deal For A Right To Work: Confronting Racism And Inequality In The U.S., James A. Gross

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

Whites have always controlled the country’s major economic and political institutions at all levels. Starting with slavery, the enduring and pervasive dogmas of White superiority and Black inferiority, once openly asserted as “keeping Negroes in their place,” were also used to restrict Black men and women to subordinate “negro jobs.” The vast riches of the United States “were available to all who had the enterprise to take them and the good fortune to be White.”

This denial of the right to work in freely chosen endeavors continues to have immense consequences for Black men, women, and children in every aspect …

Racial Diversity And Law Firm Economics, Jack Thorlin

Arkansas Law Review

There is an eternal temptation to think that if one recognizes a moral problem and does something about it, then one is blameless even if the action taken does not solve the problem. We usually recognize that it is absurd to credit intent when the disconnect from results is vast—consider the rightfully mocked tendency of people to respond to tragedies by declaring that their “thoughts and prayers” are with the victims rather than taking any meaningful step to ameliorate their suffering. People still engage in such posturing because the behavior benefits them in several ways: (a) others see that the …

The State Secrets Privilege: An Institutional Process Approach, Alexandra B. Dakich

Northwestern University Law Review

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Policing, Stories, Problems, And Solutions, Katherine Mims Crocker

Popular Media

No abstract provided.

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

Articles

This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Children And The Cold War: Race & Hypocrisy Amid Fear Of Nuclear War, Richard D. Mctaggart Jr.

Theses and Dissertations

During the Cold War, American propaganda centered the wellbeing of the child in its messaging warning of atomic attack at the hands of the Soviet Union. However, despite American claims that all children were valued by the United States, this was proven untrue by its unequal treatment of Black children.

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol

Faculty Articles

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

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 …

Panel 2 - Unreported Shortcomings Of Title Ix, Lisa Taylor, Leslie Annexstein, Elizabeth Kristein, Natasha Martin, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

MODERATOR: Hello, everyone, and welcome to our second panel, Unreported Shortcomings of Title IX. I’m going to start off with a quick introduction of our moderator. Today we have Dean Lisa Taylor who is our Dean for Diversity, Inclusion and Affinity Relations at WCL. She is much beloved by students of the Journal and students of WCL in general. And I know she is going to kick off a great panel. Dean Taylor, it’s all yours.

Exposing Sedated Legal Responses To Non-Consensual Pelvic Exams Under Anesthesia, Ashleigh Austel

American University Journal of Gender, Social Policy & the Law

When Ashley Weitz, a woman from Utah, underwent sedation for treatment of vomiting, the last thing she expected was to wake up in the middle of an invasive pelvic exam that she did not consent to. The doctor informed her he was collecting a sample to test for sexually transmitted diseases, but the doctor had previously determined a pelvic exam was unnecessary. Reflecting on the experience, Ashley said, “in any other setting, someone putting their fingers into my vagina without my consent is assault. I did not consent to this exam, and he did it anyway.”