Civil Rights and Discrimination Commons^™

Dispute Resolution Under The Americans With Disabilities Act: A Report To The Administrative Conference Of The United States, Ann C. Hodges

Law Faculty Publications

Congress passed the Americans With Disabilities Act ("ADA") in 1990 and it became effective in 1992.The statute prohibits discrimination against individuals with disabilities by employers, state and local governments, and public accommodations. With more than two years experience under the statute, an assessment of the effectiveness of the dispute resolution procedures is appropriate. This Article begins with a brief overview of the statute, including an analysis of the dispute resolution procedure under each title. The report then discusses the effectiveness of existing dispute resolution procedures. Finally the report makes recommendations for improving the dispute resolution procedures, including a specific recommendation …

An Evidentiary Framework For Diversity As A Compelling Interest In Higher Education, Kimberly J. Robinson

Law Faculty Publications

This Note argues that if courts choose to reexamine evidence on the value of diversity in higher education, they should not apply the evidentiary requirements that the Supreme Court has applied to cases involving questions of past discrimination. Rather, courts should consider the unique nature of diversity in higher education and the protection afforded the academic context in which the evidence is considered and modify their review of the evidence presented accordingly. Furthermore, this Note argues that the interest of an institution of higher education16 in diversity is "compelling" in light of the evidence that a racially diverse student body …

Recent Case: Fourth Circuit Finds University Of Maryland Minority Scholarship Program Unconstitutional, Podberesky V. Kirwan, 38 F.3d 147 (4th Cir. 1994), Kimberly J. Robinson

Law Faculty Publications

In Podberesky v. Kirwan,4 the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court held, was not narrowly tailored to remedy past discrimination at the University. In its analysis, however, the court applied only a portion of the applicable legal standard. A proper analysis of the program using the factors set forth in United States v. Paradise would have demonstrated that the program was narrowly tailored to address the racial …

Fourth Circuit Finds University Of Maryland Minority Scholarship Program Unconstitutional, Podberesky V. Kirwan, 38 F.3d 147 (4th Cir. 1994), Kimberly J. Robinson

Law Faculty Publications

The use of minority scholarships to create a diverse student body and to remedy past discrimination has been the subject of considerable controversy in recent years. Although such scholarships constitute a small percentage of financial aid for higher education, opponents of minority scholarships argue that they unfairly discriminate against non-minority students on the basis of race. In Podberesky v. Kirwan, the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court …

Perceptual Prisms And Racial Realism: The Good News About A Bad Situation, Jonathan K. Stubbs

Law Faculty Publications

A moment of critical reflection seems appropriate. We are nearly half way through the last decade of the last century of this millennium. The Cold War has abated (at least temporarily) and the United States remains a world leader in human rights protections. Eastern European countries and the former Soviet Republics are taking fledgling steps toward creating stable democratic institutions. Nevertheless, widespread challenges face the world community--civil wars in numerous countries, nµclear proliferation, and the AIDS epidemic . . . .

The Americans With Disabilities Act In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

This Article explores the issues raised by application of the ADA in the organized employment setting. The Article begins with an overview of the statute and then analyzes its applicability in the unionized workplace. In addition to recommending changes in the statute and regulations to clarify the obligations of employers and unions under the ADA, the Article makes recommendations with respect to judicial interpretation of the statute in three major areas. In Sections III C through E, the Article analyzes the circumstances under which the union should be held liable for discrimination, recommending that courts assess liability based on the …

Withrow V. Williams And Collateral Review Of Miranda Violations: The Supreme Court Rejects The Rule Of Stone V. Powell Under A Revised View Of Applicable Prudential Concerns, John K. Byrum Jr.

University of Richmond Law Review

More than fifty years before ratification of the Fourth and Fifth Amendments to the Constitution, Lord Camden observed: [I]t is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There, too, the innocent would be confounded with the guilty. Over one hundred years later, in Mapp v. Ohio, the Supreme Court affirmed this relationship between Fourth and Fifth Amendment liberties, holding that …

The Civil Rights Act Of 1991, Retroactivity, And Continuing Violations: The Effect Of Landgraf V. Usi Film Products And Rivers V. Roadway, Leonard Charles Presberg

University of Richmond Law Review

The Civil Rights Act of 1991 (the Act) made significant changes to the major employment discrimination statutes. In addition to restoring the law that was in effect prior to a number of Supreme Court decisions which eroded the civil rights statutes, the Act also added remedies that were omitted from previous legislation. One important area that was unclear at the time of the Act's passage was the issue of retroactivity. In light of the Act's unclear legislative history, ambiguous statutory language, and seemingly contradictory Supreme Court precedent, the Act's retroactive nature has been widely litigated and discussed.

Freeman V. Pitts: A Rethinking Of Public School Desegregation, Frank H. Stubbs Iii

University of Richmond Law Review

On March 31, 1992, the United States Supreme Court unanimously declared that federal district courts have the authority to relinquish supervision and control of a public school desegregation plan in incremental stages, before full compliance has been achieved in every area of school operations. The Court also held that public school districts have no duty to remedy racial imbalance caused by demographic shifts once the vestiges of de jure segregation have been eliminated. Reversing a lower court's ruling, Justice Kennedy, writing for the majority, stated that the decision was consistent with the Court's duties to both remedy constitutional violations and …

Due Process In Death Penalty Commutations: Life, Liberty, And The Pursuit Of Clemency, Daniel T. Kobil

University of Richmond Law Review

The idea of the last-minute reprieve granted by a distant, unknowable dispenser of mercy to a man condemned to death has a powerful hold on our imaginations. Fyodor Dostoevsky's eleventh hour pardon by the czar in many ways shaped his literary career. The scene of the haunted Death Row prisoner who awaits word from the governor as a ticking clock punctuates his final hours is a stock vignette of Hollywood crime films. Anyone who has ever seized on the slimmest hope, whose fate has been committed to the hands of another - virtually all of us - can identify with …

The Clemency Process In Virginia, Walter A. Mcfarlane

University of Richmond Law Review

When asked to contribute an article on the issue of clemency, I immediately knew the area I wanted to address: the procedural and practical aspects of the clemency process in Virginia. While numerous articles have been written about clemency, few have examined the procedural rules and none have comprehensively studied the executive viewpoint regarding this area of the law.

The Quality Of Mercy: Race And Clemency In Florida Death Penalty Cases, 1924-1966, Margaret Vandiver

University of Richmond Law Review

The scholarly literature on capital punishment includes few empirical studies of executive clemency. Commutations in capital cases have been rare since 1972 when the current era of capital punishment began with the United States Supreme Court's ruling in Furman v. Georgia. A large proportion of pre-1972 death sentences were commuted; examination of clemency decisions in those cases promises to reveal much about the history of capital punishment in the United States. The present study attempts to identify factors which influenced decisions to grant commutations of Florida death sentences pre-Furman, focusing particularly on whether the race of defendants and victims influenced …

Untenable, Unchristian, And Unconstitutional, Carl W. Tobias

Law Faculty Publications

Professor Tobias provides an account of the ultimately successful 1960 efforts to desegregate the Petersburg, Virginia Public Library.

A Road Less Traveled To A Federal Era, John Paul Jones

Law Faculty Publications

Professor Jones examines efforts to ratify the federal Equal Rights Amendment which ended unsuccessfully in 1982. He argues that efforts to use the federal courts to fill in the gaps in protection of rights based on gender are likely to fall far short of what the Amendment would have provided, and that a renewed attempt at ratification would likely meet the same fate as the earlier one. He suggests a third alternative, U.S. ratification of the Convention on the Elimination of All Forms of Discrimination against Women, as the most feasible means of achieving the goals of the ERA without …

Civil Rights Plaintiffs And The Proposed Revision Of Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment of Federal Rule of Civil Procedure 11 has been the most controversial revision of the Federal Rules in their fifty-five-year history, and Rule l l's implementation has been most controversial in civil rights cases. Rule ll's application has disadvantaged civil rights plaintiffs more than any other category of civil litigant. Courts have found civil rights plaintiffs in violation of Rule 11 at a higher rate than other types of plaintiffs and have imposed substantial sanctions on them. Civil rights plaintiffs have been required to participate in expensive, unnecessary satellite litigation involving this provision. Indeed, a new study …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Rule Revision Roundelay, Carl W. Tobias

Law Faculty Publications

A critique of the proposed revision of F.R.C.P. Rule 11.

Putting The Teeth Back Into The Bfoq Requirement Of Title Vii And The Pregnancy Discrimination Act: International Union V. Johnson Controls, Inc., M. Chris Floyd

University of Richmond Law Review

In a resounding victory for women's and workers' rights, the U.S. Supreme Court has found that a Wisconsin battery manufacturer, in barring women without proof of infertility from jobs involving exposure to lead, violated the Civil Rights Act of 1964.

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

Certification And Civil Rights, Carl W. Tobias

Law Faculty Publications

In this 1991 article, Carl Tobias responds to Professor Arthur Miller's suggestion that Federal Rule of Civil Procedure 11 should not be prematurely revised.

"Professor Miller's admonitions may convince some observers, especially those authorized to propose revisions in, or to amend, the Rule that there is little wrong with Rule 11's application and that the federal judiciary simply needs a few more years to refine the implementation of this new concept. Numerous problems, however, remain substantial and some may be intrinsic or even irremediable, while certain litigants, especially civil rights plaintiffs, cannot afford to wait. I trust that Professor Miller's …

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Engendering Law Faculties, Carl W. Tobias

Law Faculty Publications

Numerous women have experienced great difficulty securing tenure at many institutions during the 1980's, even though significant numbers of women entered law teaching in that period. There currently is only an imperfect understanding of the reasons why women have encountered problems in attaining tenure. It is imperative that an enhanced appreciation of these difficulties be developed. If the problems are allowed to persist, the career and the personal well-being of every woman who considers seeking tenure are jeopardized, legal education's commitment to fairness is threatened, and the prospects for improving the treatment of women in the legal profession are reduced. …

The Church, The State, And The Eha: Educating The Handicapped In Light Of The Establishment Clause, Thomas F. Guernsey, M. Grey Sweeney

Law Faculty Publications

All parents have the basic right to guide the educational future of their children. Prior to the 1970s, however, it was not unusual for the parents of a handicapped child to find it difficult, if not impossible, to provide their child with a genuine opportunity to learn. Despite the Supreme Court's proclamation in 1954 that education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms," handicapped children were routinely excluded from public education or segregated within it. Congress, responding to the increasingly vocal call for equal education, took …

Rule 11 And Civil Rights Litigation, Carl W. Tobias

Law Faculty Publications

The recent amendment of rule 11 may well have engendered more controversy than any other revision since the Federal Rules of Civil Procedure were first promulgated one-half century ago. The new version essentially requires that judges impose sanctions on lawyers and parties who fail to conduct reasonable inquiries before filing court papers. The amendment's adoption was prompted by increasing concern about abuse of the litigation process and about the "litigation explosion" -the perception that unprecedented numbers of civil cases were being filed and that too many lacked merit. Proponents have hailed the revised rule as the savior of the civil …

When Racists And Radicals Meet, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

In order to stimulate scholarly discussion, this Essay presents an empirical account of the Greensboro incident from the perspective of those who participated in the episode and in the resulting civil rights trial. The Essay traces the circumstances leading to the violence and reviews the resultant litigation with special attention given to the role of the trial judge in politically volatile cases. The candid reflections offered by the trial judge and other participants allow the reader to examine both the event and the litigation, not merely in the abstract, but as implemented by flesh-andblood lawyers, litigants, and judges. .

Judicial Reflections Upon The 1973 Uprising At Wounded Knee, Ronald J. Bacigal

Law Faculty Publications

This essay presents a view of Wounded Knee from the perspective of federal district judge Robert R. Merhige, Jr., who was part of a judicial task force sent to South Dakota in 1973. Viewing Wounded Knee from the perspective of a trial judge discloses the social forces underlying Wounded Knee and also provides insights into the role of a trial judge in politically sensitive cases.

Unborn Child: Can You Be Protected?, Heather M. White

University of Richmond Law Review

Continuing medical advancement in the area of prenatal care' raises the question of when, if ever, the state may intervene in the life of a pregnant woman to protect her unborn child from abuse and neglect. This issue, though troublesome, can no longer be ignored. Since the Supreme Court's decision in Roe v. Wade, giving the pregnant woman the constitutional right to decide whether or not to terminate her pregnancy, there has been abundant controversy over the allowance of state intervention to protect the human fetus. This controversy necessarily entails a discussion as to when and in what manner the …

Aids And Employment Discrimination Under The Federal Rehabilitation Act Of 1973 And Virginia's Rights Of Persons With Disabilities Act, Leisa Y. Kube

University of Richmond Law Review

Acquired Immune Deficiency Syndrome (AIDS) is a fatal illness that attacks the immune system, rendering it incapable of defending the body from a variety of rare infections. In the United States, the syndrome was first observed in 1979 in isolated cases in major metropolitan areas. At that time, it affected a limited group of people, mainly homosexual men and drug abusers. Faced with a deadly illness whose cause and mode of transmission were unknown, the public understandably reacted with fear. Many AIDS victims were shunned from schools, workplaces, housing, courts, and medical facilities.

The Mentally Retarded-A Quasi-Suspect Class?: Cleburne Living Center V. City Of Cleburne, Dale W. Webb

University of Richmond Law Review

In recent years, the mentally retarded have been increasingly deinstitu- tionalized.1 One major factor responsible for this trend has been the acceptance of the theory of normalization, which proposes that mentally retarded individuals must be exposed to normal life patterns and conditions in order to develop their full potential. Mental health officials have attempted to implement normalization by the relocation of the mentally retarded into group homes. The group home format offers the benefits of family living through the placement of small groups of mentally retarded individuals into homes in residential areas.

A Review Of Federal Court Decisions Under Title Vii Of The Civil Rights Act Of 1964, Mary L. Heen

Law Faculty Publications

Fifteen essays examine the highly emotional debate, considering discussions by unions, state legislatures, and the courts.