Civil Rights and Discrimination Commons^™

The Ninth Circuit's Perry Decision And The Constitutional Politics Of Marriage Equality, William N. Eskridge

Georgetown Law Faculty Publications and Other Works

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay …

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Georgetown Law Faculty Publications and Other Works

Douglas NeJaime's Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a "cause" exists because the dominant institutions of society have failed to represent the interests and ideas of some …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

Community Economic Development And The Paradox Of Power, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

This article starts from the premise that poverty is a growing problem in the United States. Intergenerational poverty, the entrenchment of a class of very poor people, is a major sub set of that problem and is tied very closely to the issue of race. The author claims that missing in the fight by the poor and their allies against stratified poverty is the creation and utilization of power. This paper examines the disparate ways in which commentators have defined power. It suggests that those seeking to obtain power must understand the concept’s varying meanings and direct their activities to …

Response: The Death Of The Bisexual Saboteur, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

Professor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one's sexual partner, then Glazer's solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation "is the sex toward which …

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

De-Concentrating Poverty: De-Constructing A Theory And The Failure Of Hope, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

Since the late 1980s, led by William Julius Wilson’s The Truly Disadvantaged, scholars have been writing about the social problems caused by the concentration in residential communities of high levels of poverty. Even before Wilson’s book, government policy, which previously had resulted in racially and economically segregated communities, had begun to shift towards de-concentration. The consent decree in Hills v Gautreaux, and the HOPE VI and Moving to Opportunity Programs all pointed towards de-concentration of poverty. Commentators have suggested both benign and not-so-benign reasons for the policy shift.

There were a variety of quite hopeful goals promoted by …

Eminent Domain And Racial Discrimination: A Bogus Equation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This paper is a transcript of testimony by Professor J. Peter Byrne before the U.S. Civil Rights Commission on August 12, 2011.

This hearing addresses claims that the use of eminent domain for economic development unfairly and disproportionately harms racial and ethnic minorities. These claims draw on the history of urban renewal prior to the 1960’s, when many African Americans and others were displaced by publicly funded projects that bulldozed their homes in largely failed attempts to modernize cities. Justice Clarence Thomas’s dissent in Kelo v. City of New London further argued that the use of eminent domain for economic …

Burying Our Heads In The Sand: Lack Of Knowledge, Knowledge Avoidance And The Persistent Problem Of Campus Peer Sexual Violence, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

This article discusses why two laws that seek to prevent and end sexual violence between students on college campuses, Title IX of the Educational Amendments of 1972 ("Title IX") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"), are failing to fulfill that goal and how these legal regimes can be improved to reach this goal. It explicates how Title IX and the Clery Act ignore or exacerbate a series of "information problems" that create incentives for schools to "bury their heads in the sand" with regard to campus peer sexual violence. These …

Tragic Rights: The Rights Critique In The Age Of Obama, Robin West

Georgetown Law Faculty Publications and Other Works

This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three-pronged rights critique-–that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community--was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development.

The rights critique continues to be relevant today, because Obama-era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of …

Electronic Communications Privacy Act And The Revolution In Cloud Computing : Hearing Before The Subcomm. On The Constitution, Civil Rights, And Civil Liberties Of The H. Comm. On The Judiciary, 111th Cong., Sept. 23, 2010 (Statement By Adjunct Professor Marc J. Zwillinger, Geo. U. L. Center), Marc J. Zwillinger

Testimony Before Congress

ECPA has functioned fairly well during its first 20 years in striking the right balance between law enforcement needs and the privacy expectation of U.S. citizens. But when it was initially passed in 1986, Congress recognized that the “law must advance with the technology to ensure the continued vitality of the fourth amendment.” Based on my experience as an ECPA practitioner for the past 13 years, I believe the time is ripe for another advancement. I hope you will consider these perspectives in crafting legislation that balances law enforcement needs and user privacy in a manner that reflects the reality …

Disparate Impact, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …

A Marriage Is A Marriage Is A Marriage: The Limits Of Perry V. Brown, Robin West

Georgetown Law Faculty Publications and Other Works

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of …

To Be Muslim Or "Muslim-Looking" In America: A Comparative Exploration Of Racial And Religious Prejudice In The 21st Century, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay begins with a confession. In taking implicit association tests ("IATs") designed to measure my unconscious attitude toward two particular demographic groups, I discovered that I, an African-American, harbored a "slight automatic preference" for Europeans over blacks and for "other people" over "Arab-Muslims." Both of these results were contrary to my professed or conscious assertions of neutrality. Why would a pro-integration scholar who seeks to promote cross-racial understanding and inclusion exhibit such implicit biases? And why is it that a majority of others who take these tests register similar implicit biases? The point of my confession is to underscore …

Testimony On The Employment Non-Discrimination Act (Enda) And The Religious Exemption : Hearing Before The H. Comm. On Education And Labor, 111th Cong., Sept. 23, 2009 (Statement Of Adjunct Professor David N. Saperstein, Geo. U. L. Center), David N. Saperstein

Testimony Before Congress

We are long past the point when our laws should permit discrimination against any individual because of their sexual orientation. Just as we do not tolerate behavior that discriminates based on race, gender, national origin or religion, so should we be clear about discrimination based on the characteristic of being gay or lesbian. For many of America’s faith traditions, this is a religious value. It is a moral value. And for all of us, it is of great social and economic value, as evidenced by the nearly 90% of Fortune 500 companies that already have policies consistent with ENDA. They …

The Same-Sex Future, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Insurance Discrimination On The Basis Of Health Status: An Overview Of Discrimination Practices, Federal Law And Federal Reform Options, Sara Rosenbaum

O'Neill Institute Papers

Actuarial underwriting, or discrimination based on an individual’s health status, is a business feature of the voluntary private insurance market. The term “discrimination” in this paper is not intended to convey the concept of unfair treatment, but rather how the insurance industry differentiates among individuals in designing and administering health insurance and employee health benefit products.

Discrimination can occur at the point of enrollment, coverage design, or decisions regarding scope of coverage. Several major federal laws aimed at regulating insurance discrimination based on health status focus at the point of enrollment. However, because of multiple exceptions and loopholes, these laws …

Doctrinal Dilemma, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves …

The Conscience Of A Court, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author explains his conclusion that the Supreme Court, as a matter of conscience, considers racial discrimination to be good for America. That conclusion, he argues, offers the only plausible account of the Court's repeated insistence on displacing populist efforts to promote racial equality with the Court's own, more-regressive, version of expedient racial politics. Although the Court has had what is at best a checkered history when called upon to adjudicate claims of racial injustice, until now, the contemporary Court might arguably have been accorded the benefit of the doubt. But after its five-to-four ruling in the 2007 Resegregation case, …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

Dilemmas Of Cultural Legality: A Comment On Roger Cotterrell's 'The Struggle For Law' And A Criticism Of The House Of Lords' Opinions In Begum, John Mikhail

Georgetown Law Faculty Publications and Other Works

In “The Struggle for Law: Some Dilemmas of Cultural Legality,” Professor Roger Cotterrell argues that the law’s most distinctive aspiration is to promote a respectful exchange of ideas among different parts of a multicultural society. He illustrates his thesis with the House of Lords’ decision in Begum, describing it as “a relatively successful contribution to the process by which battlefields of rights are turned into areas of routine structuring” and finding much to admire in the messages communicated by the Lords in this case. I am more troubled by the Lords’ opinions in Begum and less convinced than Cotterrell seems …

Postracial Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Claims of racial injustice can be challenged by arguing that the culture makes it possible for minorities to compete with whites on a level playing field. Under this reasoning, racial disparities that continue to inhere in the allocation of societal benefits and burdens must be caused by the attributes of individual minority group members themselves, rather than by any invidious consideration of their race. The election of President Obama now gives this argument more apparent plausibility than it has had in the past. Indeed, if one were inclined to preserve the nation’s tradition of privileging white interests over the interests …

Out Of The Shadows: Preventive Detention, Suspected Terrorists, And War, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the appropriate and inappropriate role of "preventive detention" in responding to terrorist threats. It offers a constitutional jurisprudence of preventive detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, preventive detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, preventive detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted preventive detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and detention of enemy soldiers in a traditional …

The Americans With Disabilities Act And The Ada Amendments Act Of 2008: Hearing Before The S. Comm. On Health, Education, Labor & Pensions, 110th Cong., July 15, 2008 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Dear Colleague Letter From Reps. Emanuel Cleaver And Mark Souder, Emanuel Cleaver, Mark Souder

Briefings, Hearings, and Congressional Study Group

Dear Colleague letter written by members of Congress, Emanuel Cleaver and Mark Souder for the event: Workplace Flexibility and Religion held June 6, 2008.

Reply Brief For Petitioner, Engquist V. Oregon Department Of Agriculture, No. 07-474 (U.S. April 9, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.

Brief Of Petitioner, Engquist V. Oregon Dept. Of Agriculture, No. 07-474 (U.S. Feb. 20, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.

Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …

Disintegration, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The silver lining behind the Supreme Court's decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal "equality" that has historically …

Are We Dead Yet? The Lies We Tell To Keep Moving Forward Without Feeling, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

Some days it seems easier to live with innocence, as though this afternoon's traffic and tonight's dinner were the big challenges of our lives, as if we could keep turning the key in the ignition and burning the incandescent bulb in the kitchen, magically removed from a grid that involves coal and oil, mercury poisoning, and pipelines, and colonialism and war.

Charles Lawrence wrote an article to prove to himself that he was not crazy. To tired colleagues who were saying, "There are no racists here," an adult variant of "Wasn't me," he chose a response that ruptured. In the …