Civil Rights and Discrimination Commons^™

Evolving Beyond Reasonable Accommodations Towards "Off-Shelf Accessible" Workplaces And Campuses, Karla Gilbride

American University Journal of Gender, Social Policy & the Law

One of the hallmarks of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in the workplace on the basis of disability, is that it defines “discrimination” to include “not making reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual with a disability.” This concept of reasonable accommodation was seen as innovative in two ways. It recognized that employers must sometimes take affirmative steps or make adaptations to afford individuals with disabilities an equal opportunity to apply for and perform jobs. And it identified the failure to take such affirmative steps as a type of …

The Next Four Years, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The articles in this issue lay out an ambitious agenda. We hope they serve as inspiration for the restoration of faith in democracy and for hope that our country can work to come back together in the next four years and beyond. There is much work to be done.

Are We Still Not Saved? Race, Democracy, And Educational Inequality, Lia Epperson

Scholarly Articles in Law Reviews & Journals

Thirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves …

Comparing Dadd V. Anoka County With Corbitt V. Vickers: Why Defendants Should Bear The Burden Of Establishing Qualified Immunity In A Motion To Dismiss, Aisha Green

American University Law Review

In the wake of last summer’s George Floyd protests, qualified immunity is once again at the forefront of the debate. Officials, such as police officers, can raise qualified immunity as an affirmative defense in response to allegations that they have violated an individual’s constitutional rights. The different interpretations of qualified immunity’s meaning, use, and scope among the circuit courts have contributed to the development of strong opinions on both sides of the defense.

Particularly, circuit courts are split over who bears the burden of establishing qualified immunity when defendants use it as a basis for a motion to dismiss under …

Thirsty Places, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

The United States, among the wealthiest and most prosperous nations in the world, regularly fails to provide clean, potable water to many of its citizens. Recent water crises occur within communities categorized as Geographically Disadvantaged Spaces ("GDS'), which often encompass urban and rural areas. What is more, people of color and economically vulnerable populations are often located within GDS, disproportionately burdening these groups with the economic and public health consequences of failing water infrastructure. This article provides a novel, comparative analysis of communities lacking potable water in Flint, Michigan, and southern West Virginia. This analysis highlights entrenched structural problems present …

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

American University Law Review

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

The Invisible Ban: Negligent Disparate Impact, Kenneth R. Davis

American University Law Review

Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate impact law imposes strict liability on employers for using facially neutral employment practices that have a disproportionately adverse effect on a protected class.

This Article proposes following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The very language of Title VII provides the means to rectify this deficiency …

Surveillance And The Tyrant Test, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, …

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

#Livingwhileblack: Blackness As Nuisance, Taja-Nia Y. Henderson, Jamila Jefferson-Jones

American University Law Review

No abstract provided.

Cve And Constitutionality In The Twin Cities: How Countering Violent Extremism Threatens The Equal Protection Rights Of American Muslims In Minneapolis-St. Paul, Sarah Chaney Reichenbach

American University Law Review

In 2011, President Barack Obama announced a national strategy for countering violent extremism (CVE) to attempt to prevent the “radicalization” of potential violent extremists. The Obama Administration intended the strategy to employ a community-based approach, bringing together the government, law enforcement, and local communities for CVE efforts. Despite claiming to target extremism in all forms, government-funded CVE programs in the United States have almost exclusively focused on Islamic extremism. One pilot program focused on the Twin Cities in Minnesota—Minneapolis and St. Paul—home to the largest Somali community in the United States, most of whom are Muslim. The Trump Administration has …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

American University Law Review

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability …

Erasing Race, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …

Race, Rights, And The Representation Of Children, Barry Feld, Perry Moriearty

American University Law Review

No abstract provided.

Outsourcing Discrimination, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

Coronavirus, Civil Libertities, And The Courts: The Case Against Suspending Judicial Review, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Introduction: For obvious reasons, local and state orders designed to help “flatten the curve” of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints …

The Intersection Between Disability And Lgbt Discrimination And Marginalization, Victoria M. Rodríguez-Roldán

American University Journal of Gender, Social Policy & the Law

No abstract provided.

What Matters More: Preserving A Fundamental Right To Privacy Or Tampering With Another's Dignity Through Searches Because Of "Reasonable Suspicion", Darianne De Leon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

Celebrating WCL Student Authors

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Using The Ada's 'Integration Mandate' To Disrupt Mass Incarceration, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades. However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the …

Native American Voting Rights: Two Steps Forward, One Step Back, Patrick Roche

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Acting Differently: How Science On The Social Brain Can Inform Antidiscrimination Law, Susan Carle

Scholarly Articles in Law Reviews & Journals

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between "us" versus "them" on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, …

Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The traditional discrimination narrative dominates both legal and popular understanding of workplace exploitation of African American workers. This narrative, however, is incomplete as it fails to consider other chronic workplace challenges such as wage theft. The dominant narrative draws upon an anticlassification framework rather than an antisubordination framework. In addition, post-racial legal analyses complicate the dominant narrative’s utility, particularly in a system plagued by structural inequality. Furthermore, both its legal underpinnings and the normative realities of pursuing discrimination claims challenge its efficacy in addressing workplace subordination. Wage theft has largely characterized only the immigrant worker exploitation narrative, despite wage theft’s …

Publicly Charged: A Critical Examination Of Immigration Public Benefit Restrictions, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration policies …

There Isn't Any Dumpster, Jill C. Engle

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Forgotten Children: Rethinking The Individuals With Disabilities Education Act Behavior Provisions, Margaret A. Dalton

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Mitigating The "Lgbt Disconnect": Title Ix's Protection Of Transgender Students, Birth Certificate Correction Statutes, And The Transformative Potential Of Connecting The Two, Kyle Velte

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Broken Bones And Pepper Spray: The State-Sanctioned Abuse Of Immigrant Juveniles In Custody, Alex Bruce

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Examining The Unconstitutionality Of Dilution By Tarnishment After Tam, Ryder Hogan

American University Journal of Gender, Social Policy & the Law

No abstract provided.