Law Commons^™

Telehealth And Telework Accessibility In A Pandemic-Induced Virtual World, Blake Reid, Christian Vogler, Zainab Alkebsi

University of Colorado Law Review Forum

This short essay explores one dimension of disability law’s COVID-related “frailty”: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients …

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

"White Men's Roads Through Black Men's Homes": Advancing Racial Equity Through Highway Reconstruction, Deborah N. Archer

Vanderbilt Law Review

Racial and economic segregation in urban communities is often understood as a natural consequence of poor choices by individuals. In reality, racially and economically segregated cities are the result of many factors, including the nation’s interstate highway system. In states around the country, highway construction displaced Black households and cut the heart and soul out of thriving Black communities as homes, churches, schools, and businesses were destroyed. In other communities, the highway system was a tool of a segregationist agenda, erecting a wall that separated White and Black communities and protected White people from Black migration. In these ways, construction …

Strategies For Equitable Access: Identifying Benefits And Strategies For Creating Integrated Public Schools, Annotated Examples Of Current School District Enrollment Practices, And Resources For Further Exploration, Lisa A. Gooden

Faculty Works

Prepared for the Equity Oriented Strategic Planning Committee for Kansas City Public Schools. Includes a summary of the benefits of integrated schools, strategies for creating equitable schools, annotated examples of current practices employed by public school districts in the United States to foster equitable access to education, and list of links to additional resources for further reading.

Kofifi/Covfefe: How The Costumes Of "Sophiatown" Bring 1950s South Africa To Western Massachusetts In 2020, Emma Hollows

Masters Theses

This thesis paper reflects upon the costume design process taken by Emma Hollows to produce a realist production of the Junction Avenue Theatre Company’s musical Sophiatown at the Augusta Savage Gallery at the University of Massachusetts in May 2020. Sophiatown follows a household forcibly removed from their homes by the Native Resettlement Act of 1954 amid apartheid in South Africa. The paper discusses her attempts as a costume designer to strike a balance between replicating history and making artistic changes for theatre, while always striving to create believable characters.

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Toward Establishing A Pre-Extinction Definition Of 'Nationwide Injunctions', Portia Pedro

Faculty Scholarship

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

Reconstructing Liberty, Equality, And Marriage: The Missing Nineteenth Amendment Argument, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote …

Masterpiece Cakeshop'S Homiletics, Marc Spindelman

Cleveland State Law Review

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Maine Law Review

Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

Discriminatory Dualism, Sarah L. Swan

Georgia Law Review

This Article identifies and theorizes a significant but
previously overlooked feature of structural
discrimination: it frequently develops into two seemingly
opposing, yet in fact mutually supportive practices. This
“discriminatory dualism” occurs in multiple contexts,
including policing, housing, and employment. In
policing, communities of color experience overpolicing
(i.e., the aggressive overenforcement of petty crime) at the
same time as they experience underpolicing (i.e., the
persistent failure to address violent crime). In housing,
redlining (i.e., the denial of credit to aspiring
homeowners based on race) combines with reverse
redlining (i.e., the over-offering of credit on exploitative
terms) to suppress minority homeownership. And …

Medical Civil Rights As A Site Of Activism: A Reply To Critics, Craig Konnoth

Publications

See Craig Konnoth, Medicalization and the New Civil Rights, 72 Stan. L. Rev. 1165 (2020).

See also Rabia Belt & Doron Dorfman, Response, Reweighing Medical Civil Rights, 72 Stan. L. Rev. Online 176 (2020), https://www.stanfordlawreview.org/online/reweighing-medical-civil-rights/; Allison K. Hoffman, Response, How Medicalization of Civil Rights Could Disappoint, 72 Stan. L. Rev. Online 165 (2020), https://www.stanfordlawreview.org/online/how-medicalization-of-civil-rights-could-disappoint/.

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Baby Suffragettes: Girls In The Woman's Suffrage Movement Across The Atlantic, Mckenzi Christensen

AWE (A Woman’s Experience)

No abstract provided.

Foreword, Honorable Nathaniel R. Jones

Freedom Center Journal

The articles in this issue of The Freedom Center Journal are timely challenges to the persistent efforts to undermine the American values enshrined in the Preamble of the Constitution and the body of the Constitution itself with its three Civil War Amendments.

The student editors of this volume intended the selected contributions to offer readers a nuanced view of our nation’s current identity crisis. The collection is offered in the hope that it will encourage further thinking and discussion about what it means to be part of the American experiment with democratic self-governance in an age of resurgent white supremacy.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

Publications

Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decision-making. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics; these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them to discriminate. …

Medicalization And The New Civil Rights, Craig Konnoth

Publications

In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon.

Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

Color-Blind But Not Color-Deaf: Accent Discrimination In Jury Selection, Jasmine Gonzales Rose

Faculty Scholarship

Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury …