Civil Rights and Discrimination Commons^™

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger

Articles

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states, Massachusetts and …

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet

Michigan Journal of Gender & Law

Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily …

Putting The Fetus First — Legal Regulation, Motherhood, And Pregnancy, Emma Milne

Michigan Journal of Gender & Law

The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or …

Civil Rights Ecosystems, Joanna C. Schwartz

Michigan Law Review

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil …

Accommodating Absence: Medical Leave As An Ada Reasonable Accommodation, Sean P. Mulloy

Michigan Law Review

The Americans with Disabilities Act (ADA) is widely regarded as one of the most significant pieces of civil rights legislation in American history. Among its requirements, Title I of the ADA prohibits employers from discriminating against people with disabilities and requires that employers make reasonable accommodations for qualified individuals. Many questions about the scope of the reasonable-accommodation mandate remain, however, as federal circuit courts disagree over whether extended medical leave may be considered a reasonable accommodation and whether an employee on leave is a qualified individual. This Note argues that courts should presume finite unpaid medical leaves of absence are …

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Dignity Transacted: Emotional Labor And The Racialized Workplace, Lu-In Wang, Zachary W. Brewster

University of Michigan Journal of Law Reform

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on …

Equality's Understudies, Aziz Z. Huq

Michigan Law Review

Review of Robert L. Tsai's Practical Equality: Forging Justice in a Divided Nation.

This Is What Democracy Looks Like: Title Ix And The Legitimacy Of The Administrative State, Samuel R. Bagentos

Michigan Law Review

Review of R. Shep Melnick's The Transformation of Title IX: Regulating Gender Equality in Education.

Redefining Reproductive Rights And Justice, Leah Litman

Michigan Law Review

Review of Reproductive Rights and Justice Stories edited by Melissa Murray, Katherine Shaw, and Reva B. Siegel.

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Law & Economics Working Papers

Because Title IX of the Education Amendments of 1972 involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), the administration of that statute by the Department of Education's Office for Civil Rights has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have …

For Cause: Rethinking Racial Exclusion And The American Jury, Thomas Ward Frampton

Michigan Law Review

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court’s three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of …

Disability Rights And The Discourse Of Justice., Samuel Bagenstos

Articles

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that the …

Me Too? The Invisible Older Victims Of Sexual Violence, Ruthy Lowenstein Lazar

Michigan Journal of Gender & Law

A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system.

This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of …

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld, Emily Gold Waldman

Michigan Journal of Gender & Law

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

Olmstead V. L.C.: The Supreme Court Case, Samuel R. Bagenstos, Irv Gornstein, Michael Gottesman, Jennifer Mathis

Articles

You have an incredible luxury here at Georgetown Law. You have faculty who are engaged in the world like two of my colleagues on this panel. To my immediate left is Professor Michael Gottesman (Georgetown University Law Center) who argued the case on behalf of Lois and Elaine, and to my next far left, Professor Irv Gornstein (Georgetown University Law Center) who argued the case on behalf of the United States. Between them is Jennifer Mathis (The Bazelon Center for Mental Health Law) who has spent, I think, most of her career at the Bazelon Center litigating, and organizing, and …

Prescription Restriction: Why Birth Control Must Be Over-The-Counter In The United States, Susannah Iles

Michigan Journal of Gender & Law

This Note argues that it is harmful and unnecessary to require women to obtain prescriptions for access to hormonal birth control. Requiring a prescription is necessarily a barrier to access which hurts women and hamstrings the ability to dictate their own reproductive plans. It is also an irrational regulation in light of the relative safety of hormonal birth control pills, particularly progestin-only formulations, compared to other drugs readily available on the shelves.

Leading medical organizations, including the American College of Obstetrics and Gynecologists, advocate for over-the-counter access to hormonal birth control. While acknowledging that not every woman will have positive …

America's Paper Prisons: The Second Chance Gap, Colleen Chien

Michigan Law Review

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …

The Right To Be And Become: Black Home-Educators As Child Privacy Protectors, Najarian R. Peters

Michigan Journal of Race and Law

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or …

Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Racial Purges, Robert L. Tsai

Michigan Law Review

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.

Government Misconduct And Convicting The Innocent: The Role Of Prosecutors, Police And Other Law Enforcement, Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, Klara Huber Stephens

Other Publications

This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989, 2,663 as of this writing. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019.

In general, we classify a case as an “exoneration” if a person who was convicted of a crime is officially and completely cleared based on new evidence of innocence.

The Report is …

New Textualism And The Thirteenth Amendment, Leah Litman

Articles

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …

Allen V. Cooper: Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Samuel Bagenstos

Appellate Briefs

Amici are scholars of constitutional law, federal jurisdiction, and civil rights law who have taught and written about the Eleventh Amendment and state sovereign immunity for many years. We present this brief in an effort to make our scholarship and experience useful to the Court.

This brief suggests a path for resolving this important case that is faithful to the Constitution's text and history, minimizes disruption to this Court's state sovereign immunity jurisprudence, and maximizes the chance for consensus on the Court. The key is this Court's unanimous decision, authored by Justice Antonin Scalia, in United States v. Georgia, …

Does A Non-Extreme Answer To Extremism Exist?, Jeffrey Levicki

University of Michigan Journal of Law Reform

Foreword for the Journal of Law Reform symposium entitled Alt-Association: The Role of Law in Combatting Extremism.

Keynote Address, Sammy Rangel

University of Michigan Journal of Law Reform

The following is a transcription of Mr. Rangel’s keynote address presented at the University of Michigan Journal of Law Reform Symposium, Alt Association: The Role of Law in Combating Extremism on November 17, 2018, at the University of Michigan School of Law. The transcript has been lightly edited for clarity.