Civil Rights and Discrimination Commons^™

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

Looking Ahead: The Future Of Affirmative Action, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke …

The Significance Of Entrenchment Of Equality Rights, Dianne Pothier

Dianne Pothier Collection

Not until April 17, 1985 did Canada's Constitution officially embrace guarantees of equality. The three year delay in the coming into force of section 15 of the Canadian Charter of Rights and Freedoms was a clear acknowledgement that equality was not a pre-existing condition at the time of entrenchment of the Charter in 1982. After 17 years of experience with entrenched rights, it can unequivocally be said that entrenchment has brought progress toward equality. Yet it must also be said that significant barriers to the attainment of full legal equality remain. This article will explain the basis upon which I …

Should Klansmen Be Lawyers? Racism As An Ethical Barrier To The Legal Profession, Carla Pratt

Faculty Articles

No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen Norton

Publications

Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman

Faculty Publications

No abstract provided.

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic …

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, …

Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach

Osgoode Hall Law Journal

Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this article, we focus on the constitutional remedies available for profiling in the face of these statutory silences, and the implication that the choice of remedies holds for both remedial efficacy and democratic accountability. Contrary to the position held by the majority of the Supreme Court …

What Exactly Is Racial Diversity?, Devon W. Carbado, Mitu Gulati

Faculty Scholarship

No abstract provided.

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The War On Terror: Constitutional Governance In A State Of Permanent Warfare?, W. Wesley Pue

All Faculty Publications

This article assesses Canada's principal legal responses to the challenge presented by terrorism in the aftermath of the September 11, 2001 attacks on the United States. A review of major federal anti-terrorism legislation reveals a legislative response that fundamentally violates core constitutional principles while failing to significantly enhance public safety.

Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Barnes

Michigan Law Review

Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today . . . the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that. " Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It …

The Principle And Practice Of Women's "Full Citizenship": A Case Study Of Sex-Segregated Public Education, Jill Elaine Hasday

Michigan Law Review

For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court's most recent sex discrimination opinions, United States v. Virginia, purports to provide more coherent guidance. Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women "full citizenship stature" or "create[s) or perpetuate[s) the legal, social, …

Safe, But Not Sound: Limiting Safe Harbor Immunity For Health And Disability Insurers And Self-Insured Employers Under The Americans With Disabilities Act, Rachel Schneller Ziegler

Michigan Law Review

When Congress passed the Americans with Disabilities Act ("ADA") on July 26, 1990, supporters heralded the Act as a full-scale victory for the 43 million disabled Americans. The Act's protections went far beyond those of its predecessor, the Rehabilitation Act of 1974, which only prohibited discrimination against individuals with disabilities by entities receiving federal funding. The new act was intended to prevent discrimination by private and public employers, public services, and public accommodations. In a bill signing ceremony at the White House, in front of more than two thousand advocates for the disabled, then President George Bush likened the ADA …

The Case Against Employment Tester Standing Under Title Vii And 42 U.S.C. § 1981, Michael Bowling

Michigan Law Review

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. Title VII of this Act directed its aim specifically at stamping out prejudice in employment. Four years later, the Supreme Court resurrected the provisions of § 1 of the Civil Rights Act of 1866, which, among other things, protects citizens, regardless of race or color, in their right to "make and enforce [employment] contracts." Together, Title VII and § 1981 serve as the primary legal bases for challenging racially discriminatory actioris by private employers. More than thirty years …

Selective Strict Scrutiny – A New Way To Use Suspect Classifications, Bruce Comly French

Buffalo Public Interest Law Journal

No abstract provided.

Forfeiting "Enduring Freedom" For "Homeland Security": A Constitutional Analysis Of The Usa Patriot Act And The Justice Department's Anti-Terrorism Initiatives , John W. Whitehead, Steven H. Aden

American University Law Review

No abstract provided.

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Lesbians, Gay Men, And The Canadian Charter Of Rights And Freedoms, Brenda Cossman

Osgoode Hall Law Journal

The legacy of the first twenty years of the Charter for lesbians and gay men is a contradictory one of victories and defeats. At the level of doctrine, strategy, and politics, both the victories and defeats have been precarious and contradictory. While gaining formal equality rights, lesbians and gay men have not been able to secure rights to sexual freedom. And while formal equality has displaced the heteronormativity that denied legal recognition and subjectivity to lesbians and gay men, this formal equality has come at a cost. Lesbians and gay men are being reconstituted in law: some are being newly …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

American University Law Review

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich

Osgoode Hall Law Journal

Do the police use race as a proxy for criminality, particularly, in drug cases? If so, is this a rational discriminatory practice that is based on who the usual offender is or an offensive exercise of racial prejudice? What are the consequences for those communities targeted by the police? This article investigates these questions that have gone unanswered for too long in Canada. After offering a definition of racial profiling, evidence is presented that suggests that the practice is rampant in the United States and is likely practiced by some Canadian police forces, particularly, in cities with large visible minority …

Book Review Of What Brown V. Board Of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Recision, Wendy Parker

Journal of Legal Education

No abstract provided.

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

All Faculty Scholarship

Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

The Causation Fallacy: Bakke And The Basic Arithmetic Of Selective Admissions, Goodwin Liu

Michigan Law Review

Last Term, the Supreme Court turned down two invitations to resolve the constitutionality of affirmative action in college and university admissions. In May 2001, the Court for the second time declined to review a Fifth Circuit decision holding that the use of racial preferences to achieve diversity in the student body serves no compelling interest. A few weeks later, the Court let stand a conflicting Ninth Circuit decision that upheld a .law school affirmative action policy on the ground that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny." The legal controversy over admissions preferences …

Civil Liberties And The Grave Danger Of Terrorism: Speech Before The Cuyahoga County Bar Ass'n Bd Of Trustee, Arthur R. Landever

Law Faculty Presentations and Testimony

Supporters and Opponents endorse Lincoln's caution that the "dogmas of the quiet past are inadequate to the stormy present. We must think anew." All sides also agree that "eternal vigilance is the price of liberty." But what do such words mean in the world following 9/11? Supporters and Opponents of the National Government's anti-terrorism policies have starkly different perceptions. This is so as to a) the crisis we face, b) the need for particular policies, and c) the impact on civil liberties and upon our Constitutional system. Clearly, lawyers have a special duty to understand those differing perceptions in order …