Civil Rights and Discrimination Commons^™

Private Disestablishment, Gaurav Mukherjee

BYU Law Review

Should public funds support religious schools? The Supreme Court’s 4–4 decision in St. Isidore of Seville Catholic Virtual School v. Drummond may have blocked America’s first religious charter school but set no precedent, leaving core constitutional questions unanswered. This Article argues that St. Isidore illustrates “private disestablishment,” where religious institutions claim private status while exercising public power—allowing them to access public benefits without accepting public constraints. Blurring the boundary between private and public allows these entities to secure public benefits like funding and regulatory advantages while avoiding obligations that typically constrain public institutions, such as non-discrimination or religious neutrality.

The …

The Spirit Of Jubilee, Christopher D. Hampson

BYU Law Review

The Jubilee texts of the Hebrew Bible call for debts to be forgiven and enslaved persons freed every seven years and for farmland to be restored to families every fifty years. Tightly woven into the legal, narrative, and prophetic vision of the text, the Jubilee tradition offers an inspiring and dramatic vision of socioeconomic justice for multiple religious traditions. Yet the American legal tradition, which purports to draw on its religious heritage for inspiration and moral authority, has not fully drawn on the Jubilee tradition for a contemporary vision of equality and justice. This Essay seeks to rekindle that conversation. …

Antidiscrimination, Not Anti-Dei: The Real Story Of The Supreme Court’S Recent Title Vii Precedent, Madeline Meth

BYU Law Review

For several years, my colleague and I had been litigating employment discrimination cases with facts that shocked our friends and family. For example, we fought Dallas County over a women-work-the-weekend policy that required women detention officers to work weekends while male colleagues took the weekends off. Likewise, we challenged the City of Cleveland when it moved our client, an emergency medical services supervisor, from the day shift to the night shift explicitly because he is Black. Then, in April 2024, in one of our client’s cases, Muldrow v. City of St. Louis, the U.S. Supreme Court unanimously overruled the decades …

Clark Memorandum: Spring 2026, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Going Forward with Religious Freedom and Nondiscrimination
• Saving Our Democracy
• Contention Is of the Devil; Confrontation Is of God
• Mystery, Faith, and Law

Religious Employment And The Tensions Between Liberty And Equality, R. Shawn Gunnarson, James C. Phillips, Christopher A. Bates

BYU Law Review

Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute’s text says otherwise. This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title …

The Inconvenience Doctrine, Alexi Pfeffer-Gillett

BYU Law Review

In a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.

This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with …

Standing In The Dark, Sharon Brett

BYU Law Review

Demonstrating standing for injunctive relief in § 1983 police misconduct cases is undisputedly difficult for civil rights plaintiffs. Under City of Los Angeles v. Lyons, plaintiffs seeking injunctions must present more than evidence of past misconduct; they must show a significant ongoing risk that they will experience the same misconduct again. Scholarly attention to Lyons has focused primarily on doctrinal errors in the Court’s legal analysis, and for good reason. But the case raises another important yet overlooked question: Can civil rights plaintiffs realistically demonstrate risk of future harm given (a) the limited data kept by law enforcement about their …

Them’S Fightin’ Words—Maybe: Testing The Application And Boundaries Of The “Fighting Words” Doctrine Using A Randomized Survey Experiment, Erin Cranor, Dane Thorley

BYU Law Review

Advanced note to readers: The survey experiment in this Article depicts acts of verbal violence, including the use of raceand gender-based epithets. Some of the relevant caselaw also includes offensive or harmful language.

As one of only a handful of exceptions to the First Amendment’s bar on laws proscribing speech, “fighting words” are defined as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”1 It is unclear, however, how this relatively old doctrine applies to contemporary speech. Additionally, the standard is itself potentially problematic in …

“Context In Context”: The Collapse Of Title Ix’S Substantial Control Requirement, Morgan Bronson

BYU Law Review

Title IX of the Education Amendments of 1972 (Title IX) plays a critical role in addressing sex discrimination in academic settings. Though the statute envisions robust administrative enforcement, courts have largely been responsible for shaping Title IX’s liability framework, including in cases involving student-on-student sexual harassment. In two early decisions, the Supreme Court introduced five conditions necessary to establish a federal funding recipient’s liability in such cases. Among them was a two-part “substantial control” requirement: the recipient must have exercised control over both the harasser and the context of the harassment. The Court, however, never clearly articulated these conditions, leading …

For Every Right A Remedy: Providing A Private Right Of Action Under The Church Amendments, Brad Grisenti

BYU Law Review

In 1973, Congress responded to the U.S. Supreme Court’s Roe v. Wade decision by passing legislation known as the “Church Amendments.” The Church Amendments were designed to protect healthcare workers from being compelled by their employers to perform or participate in abortion or sterilization procedures that conflict with their moral and religious beliefs. However, the Church Amendments suffer from an enforcement problem, largely due to Congress’s failure to explicitly provide a private right of action in the text of the statute. And thus far, courts have consistently refrained from interpreting it as containing an implied private right of action. Without …

Expectation V. Reality: Practical Problems With The Right Of First Refusal As A Defense Against Eminent Domain, Aerin Christensen

BYU Law Review

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners.

The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory …

Clark Memorandum: Fall 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Five Ways Law School Contributes to Life’s True Purpose
• Faith in Law: A Q&A with President Dallin H. Oaks
• Personal Religious Conviction and the Practice of Law

Dignity, Deference, And Discrimination: An Analysis Of Religious Freedom In America’S Prisons, Elyse Slabaugh

BYU Law Review

The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing …

When “Close Enough” Is Not Enough: Accommodating The Religiously Devout, Dallan F. Flake

BYU Law Review

Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” employees’ religious practices that conflict with work requirements unless doing so would cause undue hardship to their business operations. Can an accommodation be reasonable if it only partially removes the conflict between an employee’s job and their religious beliefs? For instance, if a Christian employee requests Sundays off because he believes working on his Sabbath is a sin, and his employer responds by giving him Sunday mornings off to attend church services but requires him to work in the afternoon, has the employer provided a reasonable …

Don’T Say Gay Or God: How Federal Law Threatens Student Religious Rights And Fails To Protect Lgbtq Students, Stephen Mcloughlin

BYU Law Review

Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious …

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …

Discrimination Because Of Sex[Ual Orientation And Gender Identity]: The Necessity Of The Equality Act In The Wake Of Bostock V. Clayton County, Rachel Eric Johnson

BYU Law Review

No abstract provided.

The Prudential Standing Quandary When Discriminatory, Facially Neutral Laws Allegedly Cause Collateral Damage, Richard Luedeman

Brigham Young University Journal of Public Law

No abstract provided.

Admitting A Wrong: Apology For The Historical Injustice Of The Dred Scott Case, Laura Kyte

BYU Law Review

No abstract provided.

Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith

BYU Law Review

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …

Clark Memorandum: Spring 2021, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Rooting Out Racism
• How Do We Practice Our Religion While We Practice?
• Hope in Hardship
• The Unity Paradox

Read on Issuu

Country Club Sports: The Disparate Impact Of Athlete Admissions At Elite Universities, William B. Morrison

BYU Law Review

While conservative advocacy groups criticize affirmative action as anti-meritocratic, many universities give similar admissions preferences based on ostensibly race-neutral characteristics that highly correlate with wealth and whiteness. Using data made public through the recent legal challenge to Harvard’s affirmative action policies, statisticians have shown that the greatest boost to an applicant’s admission chances at elite universities is not minority status or high test scores, but rather appearing on a coach’s list of potential recruits. At Harvard, where 70% of athletes are white, these athletic recruitment lists are often for “country club sports” that require expensive tutoring and are rarely played …

Disparate Impact Claims And Punitive Damages: Justified Abrogation Of State Sovereign Immunity, Brad Stewart

BYU Law Review

No abstract provided.

Fha Sexual Harassment Claims: Title Vii Applications And Departures Through Caselaw And Hud’S 2016 Rule, Brittany Urness

Brigham Young University Journal of Public Law

No abstract provided.

In Defense Of Immutability, Nicholas Serafin

BYU Law Review

Over the last forty years, the concept of immutability has been central to Equal Protection doctrine. According to current doctrine, a trait is immutable if it is beyond the power of an individual to change or if it is fundamental to personal identity. A trait that meets either of these criteria receives heightened legal protection under constitutional antidiscrimination law. Yet most legal scholars who have addressed the topic have called for the abandonment of the immutability criterion on the grounds that the immutability criterion is conceptually confused, morally indefensible, and bound to stigmatize subordinate groups.

A rejection of the immutability …

Gay Rights, Religious Liberty, And The Misleading Racism Analogy, Andrew Koppelman

BYU Law Review

No abstract provided.

Anti-Gay Discrimination,“Conscience Exemptions,” And The Racism Analogy: A Reply To Professor Koppelman, Shannon Gilreath

BYU Law Review

No abstract provided.

In The Court Of Koppelman: Motion For Reconsideration, James M. Oleske Jr.

BYU Law Review

No abstract provided.

Caught By The Cat’S Paw, Sandra F. Sperino

BYU Law Review

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the U.S. Supreme Court in Staub v. Proctor Hospital. With its name … drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases.

The Supreme Court recognized the cat’s paw theory in a case where a hospital fired a worker. The person who made the ultimate decision did not have impermissible bias. However, her decision was influenced by information from two supervisors who …

Big Agriculture And Harm To Minority Communities: How Administrative Civil Rights Complaints Are The Solution, Morgan Drake

BYU Law Review

No abstract provided.