Law Commons^™

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Michigan Journal of Race and Law

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

America's Paper Prisons: The Second Chance Gap, Colleen Chien

Michigan Law Review

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

Removing Camouflaged Barriers To Equality: Overcoming Systemic Sexual Assault And Harassment At The Military Academies, Rebecca Weiant

Michigan Journal of Gender & Law

The Education Amendments of 1972 introduced requirements to protect female students from discriminatory policies at post-secondary institutions. A portion of those amendments, commonly known as Title IX, require that no students be subjected to discrimination based on their sex by any educational institution or activity receiving federal financial assistance. An exemption under § 1681(a)(4), however, explicitly prohibits application of Title IX to any educational institution whose primary purpose is to train individuals for military service or the merchant marine. Although those students are still subject to stringent conduct standards, the service academies themselves are tethered to sex discrimination policies only …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Modernizing State Vital Statistics Statutes And Policies To Ensure Accurate Gender Markers On Birth Certificates: A Good Government Approach To Recognizing The Lives Of Transgender People, Lisa Mottet

Michigan Journal of Gender & Law

Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital …

Fair Lending 2.0: A Borrower-Based Solution To Discrimination In Mortgage Lending, Jared Ruiz Bybee

University of Michigan Journal of Law Reform

Fair lending laws promise that borrowers with similar credit profiles will receive similar loan products-regardless of their race. Yet, studies reveal that black and Latino borrowers consistently receive loan products that are inferior to those of white borrowers with similar credit characteristics. Despite frequent amendments since their passage during the Civil Rights Era, the Fair Lending Laws that opened doors for minority borrowers are unable to root out the subtle discrimination that persists in today's mortgage lending market. These traditional Fair Lending Laws are built on an outdated framework that focuses exclusively on punishing lenders and righting past wrongs. This …

Some Women's Work: Domestic Work, Class, Race, Heteropatriarchy, And The Limits Of Legal Reform, Terri Nilliasca

Michigan Journal of Race and Law

This Note employs Critical Race, feminist, Marxist, and queer theory to analyze the underlying reasons for the exclusion of domestic workers from legal and regulatory systems. The Note begins with a discussion of the role of legal and regulatory systems in upholding and replicating White supremacy within the employer and domestic worker relationship. The Note then goes on to argue that the White, feminist movement's emphasis on access to wage labor further subjugated Black and immigrant domestic workers. Finally, I end with an in-depth legal analysis of New York's Domestic Worker Bill of Rights, the nation's first state law to …

Finding A Cure In The Courts: A Private Right Of Action For Disparate Impact In Health Care, Sarah G. Steege

Michigan Journal of Race and Law

There is no comprehensive civil rights statute in health care comparable to the Fair Housing Act, Title VII, and similar laws that have made other aspects of society more equal. After Congress passed the Civil Rights Act of 1964, Title VI served this purpose for suits based on race, color, and national origin for almost four decades. Since the Supreme Court's 2001 ruling in Alexander v. Sandoval, however, there has been no private right of action for disparate impact claims under Title VI, and civil rights enforcement in health care has suffered as a result. Congress has passed new legislation …

Whither The Disability Rights Movement?, Robert W. Pratt

Michigan Law Review

While reading this book in 2010, almost twenty years to the date after President George H.W. Bush signed the Americans with Disability Act ("ADA"), one realizes how much the world of politics has changed. It is difficult to remember a time when such major legislation passed the U.S. Senate by a vote of 91 to 6 and the House of Representatives by 377 to 28. Even more surprising, as we look back to 1990, is the fact that the executive branch was controlled by a different political party than the legislative branch. Contrast this legislative record with the milieu surrounding …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Federal Employer Sanctions As Immigration Federalism, Darcy M. Pottle

Michigan Journal of Race and Law

For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal …

Engineering The Endgame, Ellen D. Katz

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Do Not (Re)Enter: The Rise Of Criminal Background Tenant Screening As A Violation Of The Fair Housing Act, Rebecca Oyama

Michigan Journal of Race and Law

Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, …

Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum

Michigan Journal of Race and Law

Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …

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 …

We Need Inquire Further: Normative Sterotypes, Hasidic Jews, And The Civil Rights Act Of 1866, William Kaplowitz

Michigan Journal of Race and Law

According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations …

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Michigan Journal of Race and Law

This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain …

Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson

University of Michigan Journal of Law Reform

This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit's and other federal courts' narrow interpretation of § 1981's application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute's express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil …

"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar

Michigan Journal of Gender & Law

This Article will focus on what might be considered the "prehistory" of the PDA in an attempt to shed new light on the equality/difference debate. Beginning as early as the nineteenth century, pregnant workers have been forced into either the equality approach or the difference approach depending mostly on race and class. This Article will show that, at times, both approaches restrained the autonomy of women and even caused harm to individual women and society by contributing to the development of the stereotypes and social attitudes that continue to permit pregnancy discrimination today.

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 …

The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson

Michigan Journal of Race and Law

This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …