Civil Rights and Discrimination Commons^™

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim At First Amendment Freedom Of Speech, James M. Gottry

Vanderbilt Law Review

Imagine a young woman, Elaine, who is a gifted photographer. She launches a small photography business with her husband, and soon she is in demand throughout the state. Her specialty is weddings. One day Elaine receives a request to photograph a same-sex commitment ceremony. Politely, she declines, explaining that she only photographs traditional weddings. Several months later, she is contacted by the state's Human Rights Commission. Elaine learns that a complaint has been filed against her, and she is being charged with discrimination on the basis of sexual orientation.

Imagine a young man, Michael, who is a gifted filmmaker. While …

Green Jackets In Men's Sizes Only: Gender Discrimination At Private Country Clubs, Thaddeus M. Lenkiewicz

Vanderbilt Journal of Transnational Law

On November 3, 2009, the Supreme Court of Ireland held that the Portmarnock Golf Club could maintain its rule prohibiting female membership free from the sanctions of Ireland's antidiscrimination laws. Portmarnock is representative of the numerous private golf clubs that continue to promote discrimination against women. Despite significant advances in gender equality, private country clubs in the United States, the United Kingdom, and Ireland remain bastions of codified gender discrimination. Many of the most prominent golf clubs hold firmly to discriminatory policies established generations ago. Opposition to these policies has come in various forms of protest and litigation, with mixed …

Admitting Guilt By Professing Innocence: When Sentence Enhancements Bases On "Alford" Pleas Are Unconstitutional, Anne D. Gooch

Vanderbilt Law Review

A few days before Christmas in 1994, in Vineland, New Jersey, Charles Apprendi, Jr. was drunk. At 2:04 a.m., he fired several shots from a .22 caliber gun into the home of an African-American family in his neighborhood. By 3:05 a.m., he had been arrested and had admitted that he was the shooter. Apprendi was interrogated for several hours after these events. At 6:04 a.m., he apparently stated that he committed the crime because the victims were black, but he later retracted this statement. Apprendi was indicted on twenty-three counts in connection with the shooting, and eventually pleaded guilty to …

The Consequences Of Congress's Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Vanderbilt Law Review

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Preempting Discrimination: Lessons From The Genetic Information Nondiscrimination Act, Jessica L. Roberts

Vanderbilt Law Review

The Genetic Information Nondiscrimination Act ("GINA'), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article …

Black And Brown Coalition Building During The Post-Racial Obama Era, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This essay explores how the past Civil Rights Movement and discrimination against persons of color, mainly Latinos and African Americans, can help to address current forms of discrimination in our country. In particular, since the election of the first African American President, who also has immigrant parents, many people have claimed that we have reached a “post-racial” America. In the new post-racial America, proponents claim that the pre-Civil Rights Movement racial caste system of the sixties has been eradicated. In this context, this essay seeks to explore whether there is any link between the past experiences of African Americans with …

Does Unconscious Racial Bias Affect Trial Judges?, Chris Guthrie, Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …

The Emperor Is Still Naked: Why The Protocol On The Rights Of Women In Africa Leaves Women Exposed To More Discrimination, Kristin Davis

Vanderbilt Journal of Transnational Law

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its …

Treason In The Age Of Terrorism: An Explanation And Evaluation Of Treason's Return In Democratic States, Kristen E. Eichensehr

Vanderbilt Journal of Transnational Law

Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War I. Now it is making a comeback with prosecutions or threatened prosecutions against a new type of enemy--accused terrorists--in the United States, the United Kingdom, and Israel. In the postwar period, commentators wrongly argued that treason would no longer be prosecuted because it is antiliberal, too difficult to prove, unnecessary because modern democracies are stable and secure, and premised on an extinct sense of loyalty to the state. This Article begins by debunking these claims and explaining treason's recent reappearance. First, democratic …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …

Review Of Crafting The Overseer's Image By William E. Wiethoff, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Wherever slaves worked on plantations in the antebellum South, overseers were hired to supervise and discipline them. Crops, soil types, and topographies varied greatly across the region, but professional slave drivers were fixtures of the landscape from the colonial era to the Civil War. Their ubiquity pleased few people, slave or free. Accounts of their sadism, sexual violence, and general coarseness and stupidity are not limited to slave narratives and abolitionist tracts; gripes and horror stories fill the public and private writings of plantation owners, too. Harriet Beecher Stowe was hardly taking literary license when she made slave owner Simon …

Skin Color Discrimination And Immigrant Pay, Joni Hersch

Vanderbilt Law School Faculty Publications

In "Profiling the New Immigrant Worker: The Effects of Skin Color and Height," (Journal of Labor Economics 2008), I present strong evidence of a wage penalty to darker skin color among new legal immigrants to the United States. Immigrants with the lightest skin color earn on average 17 percent higher wages than comparable immigrants with the darkest skin color, taking into account Hispanic ethnicity, race, country of birth, education, English language proficiency, family background, and occupation in the source country. This current paper demonstrates that the penalty to darker skin color is not a spurious consequence of omitted variables bias. …

Capitalism And The Tax System: A Search For Social Justice, Beverly I. Moran

Vanderbilt Law School Faculty Publications

America is a country founded on ideas. The Enlightenment was one set of ideas that attended our birth and one Enlightenment belief as strong today as during the revolution is our faith in capitalism and the protection of private property. Yet, the United States tax system manages to violate fundamental capitalist principles as outlined in the extensive writings of Adam Smith - the father of capitalism. Comparing Smith's vision to the current United States tax system reveals many important inconsistencies, particularly the current penchant for simultaneously taxing wages while exempting (or delaying) taxes on wealth and wealth appreciation. The article …

Rodrigo's Corrido: Race, Postcolonial Theory, And U.S. Civil Rights, Richard Delgado

Vanderbilt Law Review

Richard Delgado enlists his alter ego, Rodrigo, to analyze Latino legal history and civil rights. Encountering "the Professor" after testifying at a hearing on an immigration bill, Rodrigo excitedly tells his old friend and mentor about a new body of writing he has come across. Postcolonial theory, which deals with issues such as cultural survival, resistance, and collaboration, can help move American civil rights scholarship beyond its current impasse. Over dinner, Rodrigo demonstrates how insights from these writers can enrich U.S. civil rights theory and practice. He also posits a new theory of Latinos' sociolegal construction, based on a triple …

Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal - called the Michigan Civil Rights Initiative (MCRI) - that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a …

The Admission Of Legacy Blacks, Angela Onwuachi-Willig

Vanderbilt Law Review

Three years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first-generation black immigrant students in the United States, second-generation black American students, and mixed-race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Duke, Georgetown, Northwestern, Oberlin, the University of California- Berkeley, the University of Michigan, the University of North Carolina-Chapel Hill, the University of Pennsylvania, Smith, Stanford, and Yale.

For many of those interested in how affirmative action …

Crossing The Color Line: Racial Migration And The One-Drop Rule, 1600-1860, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Scholars describe the one-drop rule--the idea that any African ancestry makes a person black--as the American regime of race. While accounts of when the rule emerged vary widely, ranging from the 1660s to the 1920s, most legal scholars have assumed that once established, the rule created a bright line that people were bound to follow. This Article reconstructs the one-drop rule's meaning and purpose from 1600 to 1860, setting it within the context of racial migration, the continual process by which people of African descent assimilated into white communities. While ideologies of blood-borne racial difference predate Jamestown, the rhetoric of …

The Title Vii Tug-Of-War: Application Of U.S. Employment Discrimination Law Extraterritorially, Latoya S. Brown

Vanderbilt Journal of Transnational Law

Companies around the world increasingly are engaging in cross-border business transactions. Globalization is a must if companies want to continue to be competitive in the marketplace--indeed it is an inevitable reality. However, in the midst of this reality is another reality: the legal implications of establishing operations abroad. Transnational expansion introduces companies to an interesting game of tug-of-war in which companies may find themselves torn between compliance with U.S. law and compliance with the laws of the host country. This Note discusses this tug-of-war in the context of Title VII of the Civil Rights Act of 1964. Over 15 years …

Welcome To Hazelton - Illegal Immigrants Beware, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

On July 13, 2006, the city of Hazleton made national news as the first municipality in the country to pass ordinances against illegal immigrants. The majority of municipal legislation that passed regulated the employment of undocumented workers. The ordinances resulted from municipal perceptions that the federal government has failed to enact and enforce comprehensive immigration legislation. Thereafter, several states and municipalities across the country passed ordinances against illegal immigration. Since then, the federal courts have been inundated with lawsuits challenging the validity of municipal ordinances.

This article delves into the profound impact that municipal ordinances that sanction businesses for employing …

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly I. Moran, Stephanie M. Wildman

Vanderbilt Law School Faculty Publications

Many believe that the legal system has achieved racial neutrality because statutes and regulations do not mention race. They do not view law and the legal system as one way that American society polices race and wealth disparities. Because American law seems removed from race and wealth concerns, legal workers see no place for such considerations in their education or practice.

Although the legal system has aspired to neutrality and equality, racialized wealth inequality has resulted and continues. This article considers the aspiration and shows how equality and neutrality can veil existing wealth inequality. Using examples from judicial decisionmaking and …

We Can Do Better: Anti-Homeless Ordinances As Violations Of State Substantive Due Process Law, Andrew J. Liese

Vanderbilt Law Review

In September of 2004, a group of local business owners and professionals in Nashville, Tennessee, together with the Nashville Downtown Partnership, a local downtown improvement organization, submitted a plan to the Metro Council that proposed making it illegal to panhandle in the busiest areas of the city. Advocates of the proposed legislation argued that panhandlers "harass tourists and customers and make the city less appealing." Opponents viewed the proposal as nothing more than an attempt to force the homeless out of the city. The Nashville plan is patterned after the measures that several major American cities-including Philadelphia, Denver, and Seattle-have …

The Untold Story Of The Rest Of The Americans With Disabilities Act, Michael Waterstone

Vanderbilt Law Review

The Americans with Disabilities Act ("ADA")' can be described as the All-Star team of civil rights legislation. The framers of the ADA sought to create sweeping change in nearly every facet of the lives of people with disabilities. To achieve these ambitious goals, the framers assembled the best and brightest parts of other civil rights legislation: pieces of Title VII of the Civil Rights Act of 1964, Section 04 of the Rehabilitation Act of 1973, Title II of the Civil Rights Act of 1964, and the Fair Housing Act. The end result was a comprehensive statute with three major parts: …

Racial Integration And Community Revitalization: Applying The Fair Housing Act To The Low Income Housing Tax Credit, Myron Orfield

Vanderbilt Law Review

A growing national debate about the future of race, housing, and urban policy in the United States is reflected in the recent controversy over the administration of the Low-Income Housing Tax Credit ("LIHTC") program, the largest federal program that supports building low-income housing. Administered by the Treasury Department, the program allows investors in residential rental property to claim tax credits for the development or rehabilitation of property to be rented to low-income tenants. The program is implemented mainly through state agencies which distribute the credit to developers on a competitive basis. Part of the LIHTC statute, which passed without debate …

Navigating Into The New "Safe Harbor": Model Interest Surveys As A New Tool For Title Ix Compliance Programs, John J. Almond, Daniel A. Cohen

Vanderbilt Journal of Entertainment & Technology Law

The policy debate and the divergent views expressed in the mainstream media have provided little practical advice regarding the Additional Clarification or the Model Survey to the well-intentioned academic institution seeking to comply with Title IX in a cost-effective manner. This Article is intended to be a source of such practical advice. This Article discusses the Additional Clarification from the perspective of the academic institution and seeks to help it evaluate whether to implement the OCR's recommendations, including the Model Survey, as part of its Title IX compliance program. The Article does not engage in the policy debate regarding the …

Constructing Reality: Social Science And Race Cases, Beverly I. Moran

Vanderbilt Law School Faculty Publications

Dred Scott v. Sanford, Plessy v. Ferguson, Brown v. Board of Education and Grutter v. Bollinger all demonstrate that law alone is not enough to make social change. Instead, lawyers interested in social change must understand the nature of the societies that they attempt to persuade and the language that leads judges to change their ways of thinking. In the early 21st century, the language of persuasion is often the language of social science.

Tragedy And Triumph In Title Ix, Welch Suggs

Vanderbilt Journal of Entertainment & Technology Law

The NCAA is trying to send a stronger message about the importance of the educational goals of college sports, as evidenced by the elevation of academic standards. However, colleges send a powerful message to parents by rewarding them for allowing their children to play a single sport year-round, to the exclusion of other activities. If sport offers a stronger guarantee of college admission than study--and Bowen's work indicates that is true not just at big-time sports powerhouses, but also at the country's most prestigious colleges--who can blame a student or parent from diving into sports? The future of women's athletics …

Brown, The Civil Rights Movement, And The Silent Litigation Revolution, Stephen C. Yeazell

Vanderbilt Law Review

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown v. Board of Education spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a revolution, and revolutions often have collateral effects as important as their immediate consequences. The civil rights movement followed the same pattern.

As an immediate consequence, that movement …

With All Deliberate Speed: Civil Human Rights Litigation As A Tool For Social Change, Beth Van Schaack

Vanderbilt Law Review

It has been said that Fildrtiga v. Peha-Irala is the Brown v. Board of Education of human rights litigation. Like Brown, Fildrtiga presents one of those rare "breakthrough moments" in law. In Fildrtiga, the Second Circuit confirmed that victims of human rights abuses abroad could seek legal redress in United States courts under the then-obscure Alien Tort Claims Act (ATCA). Fildrtiga thus inaugurated a steady line of cases in U.S. courts invoking the ATCA and related statutes to adjudicate international human rights claims. For a variety of reasons, including the very existence of these statutes, civil litigation has emerged as …

"Accommodations" For The Learning Disabled: A Level Playing Field Or Affirmative Action For Elites?, Craig S. Lerner

Vanderbilt Law Review

A growing number of students in American higher education are being diagnosed as "learning disabled" and then using that diagnosis to secure beneficial "accommodations," such as extra time on exams. These accommodations are often said to be mandated by the Americans with Disabilities Act (ADA). This Article challenges the premise that the ADA necessarily requires educational institutions to provide learning disabled students with any accommodations. The ADA defines "disability" as an impairment that substantially limits a major life activity. Whether one is substantially limited is determined with reference not to one's innate abilities, but to the skills of the average …