Civil Rights and Discrimination Commons^™

Resisting Retreat: The Struggle For Equity In Educational Opportunity In The Post-Brown Era, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

Publications

No abstract provided.

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court's most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way …

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott

Articles

Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed …

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …

Resurrecting The White Primary, Ellen D. Katz

Articles

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …

The Political Delinquent: Crime, Deviance, And Resistance In Black America, Trevor George Gardner

Scholarship@WashULaw

This Article is largely an argument that the pervasive sense of cultural resistance in the African American community must be considered by criminal theorists as, at least, a partial explanation of “criminality” within the African American community. Woven into the fabric of African American culture is a vital oppositional element. This element, spoken of in many circles as “oppositional culture” constitutes a bold and calculated rejection of destructive mainstream values that have perpetuated social inequalities and power imbalances. African American resistance culture is captured by novelist John Edgar Wideman in his account of his brother ’s criminal lifestyle and the …

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

Articles

Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.

Twenty-Five Years Of A Divided Court And Nation: "Conflicting" Views Of Affirmative Action And Reverse Discrimination, Shaakirrah R. Sanders

University of Arkansas at Little Rock Law Review

No abstract provided.

The Law And Economics Of Racial Profiling: New Jersey's Racial Profiling Statute Of 2003, George Steven Swan

North Carolina Central Law Review

No abstract provided.

African-American Farmers And The Fight For Survival: The Continuing Examination For Insights Into The Historical Genesis Of This Dilemma, Phyliss Craig-Taylor

North Carolina Central Law Review

No abstract provided.

Reflections On Augusta: Judicial, Legislative And Economic Approaches To Private Race And Gender Consciousness, Scott R. Rosner

University of Michigan Journal of Law Reform

In light of the recent controversy surrounding Augusta National Golf Club's exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members' claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under which …

Grutter V. Bollinger/Gratz V. Bollinger: View From A Limestone Ledge, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

The Consequences Of Race-Blindness: Revisiting Prediction Models With Current Law School Data, Linda F. Wightman

Journal of Legal Education

No abstract provided.

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …

Live And Let Love: Self-Determination In Matters Of Intimacy And Identity, Kim Forde-Mazrui

Michigan Law Review

Are you free to choose the race of your spouse, . . . of your child, . . . of yourself? Historically, the legal and social answer to these questions was No. Matters of racial identity and interracial intimacy were strictly circumscribed by ideologies of racial essentialism and separation, ostensibly rooted in science, morality, and religion. In contrast, according to Professor Randall Kennedy in his new book, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, the answer to all three questions should be a resounding Yes. The exclusive source of racial identification and intimacy should be individual choice, free from legal …

The Arrangements Of Race, Frank H. Wu

Michigan Law Review

In his debut novel, Stephen Carter takes pains to explain that although he and his protagonist, Talcott Garland (who goes by "Misha"), share superficial aspects of their identities, they should not be confused as twins. Carter and Misha may both be middle-aged professors at prestigious East Coast universities who grew up as members of the African-American elite that summered on Martha's Vineyard as segregation was officially ending; and they may both be passionate about chess. Beyond that, however, they are dissimilar. Carter drives no faster than the speed limit and otherwise leads a life that appears to be boring beyond …

No African-American Lawyers Allowed: The Inefficient Racism Of The Aba's Accreditation Of Law Schools, George B. Shepherd

Journal of Legal Education

No abstract provided.

White Interests And Civil Rights Realism: Rodrigo's Bittersweet Epiphany, Richard Delgado

Michigan Law Review

I had just settled down, taken off my tie, and was about to go over the two-page handout entitled "Information for Wedding Parties " that the minister of the small church had handed me minutes earlier, when I heard a knock and familiar voice from the other side of the anteroom door.

Racial Stereotypes, Broadcast Corporations, And The Business Judgment Rule, Leonard M. Baynes

University of Richmond Law Review

No abstract provided.

Cleansing Moments And Retrospective Justice, Margaret M. Russell

Michigan Law Review

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American …

American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez

Michigan Law Review

Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the …

Retrying Race, Anthony V. Alfieri

Michigan Law Review

This Essay investigates the renewed prosecution of long-dormant criminal and civil rights cases of white-on-black racial violence arising out of the 1950s and 1960s. The study is part of an ongoing project on race, lawyers, and ethics within the criminal-justice system. Framed by this larger project, the Essay explores the normative and sociolegal meaning of that resurgent prosecution. My hope in pursuing this inquiry is to better understand, and perhaps begin to refashion, the prosecutor's redemptive role in cases of racial violence. Both descriptive and prescriptive in nature, the inquiry addresses race in relation to law and community. Grappling with …