Law and Race | Open Access Articles | Digital Commons Network™

One Not Like The Other: An Examination Of The Use Of The Affirmative Action Analogy In Reasonable Accommodation Cases Under The Americans With Disabilities Act, Jamelia Morgan Jan 2018

One Not Like The Other: An Examination Of The Use Of The Affirmative Action Analogy In Reasonable Accommodation Cases Under The Americans With Disabilities Act, Jamelia Morgan

Faculty Articles and Papers

This Article discusses the debate within the courts regarding the employer's affirmative obligations under the ADA's reasonable accommodation clause by focusing on the use of the affirmative action analogy. The purpose of this Article is to examine the evolution of the affirmative-action analogy in reasonable-accommodation case law over time and to decipher its meaning and relevance. At the onset, it is important to establish a few definitions and assumptions. First, the affirmative-action analogy refers to cases where courts liken or compare the plaintiff's reasonable-accommodation request to affirmative action. Specifically, the Article examines cases where the term "affirmative action" explicitly appears …

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In The Name Of The Child: Race, Gender, And Economics In Adoptive Couple V. Baby Girl, Bethany Berger Jan 2015

In The Name Of The Child: Race, Gender, And Economics In Adoptive Couple V. Baby Girl, Bethany Berger

Faculty Articles and Papers

On June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case is ostensibly about a dispute between prospective adoptive parents and a biological father. This Article demonstrates that it is about a lot more than that. It is a microcosm of anxieties about Indianness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and may …

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Williams V. Lee And The Debate Over Indian Equality, Bethany Berger Jan 2011

Williams V. Lee And The Debate Over Indian Equality, Bethany Berger

Faculty Articles and Papers

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

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Reconciling Equal Protection And Federal Indian Law, Bethany Berger Jan 2010

Reconciling Equal Protection And Federal Indian Law, Bethany Berger

Faculty Articles and Papers

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian …

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Red: Racism And The American Indian, Bethany Berger Jan 2009

Red: Racism And The American Indian, Bethany Berger

Faculty Articles and Papers

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked …

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Straight From The Mouth Of The Volcano: The Lowdown On Law, Language, And Latin@S, Ángel Oquendo Oct 2008