Civil Rights and Discrimination Commons^™

#Metoo Vs. Anti-Dei, Nicole Porter

Faculty Publications

Nine years ago, the entire country was talking about the #MeToo movement, which can be credited with the unseating of hundreds of powerful men and changing the way we talk about and address sexual harassment in the workplace. In 2026, continued progress of the #MeToo movement might be threatened by a new movement-the Trump Administration's attack on Diversity, Equity, and Inclusion (DEI) initiatives. This article discusses the ways in which the #MeToo movement conflicts with the anti-DEI movement. Specifically, it addresses how employers will respond to pressure to dismantle DEI programs, offices, and training, and how those responses will affect …

Statutory Backups For Endangered Constitutional Rights, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the phenomenon of “statutory backup rights,” or statutes that provide protections parallel to constitutional rights that are believed to be at risk of judicial abrogation. Proposals for backup rights gained attention in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which not only eliminated the constitutional right to abortion but called into question some other constitutional rights as well. Shortly after Dobbs, Congress enacted a limited statutory backup for same-sex marriage. States have created backup rights across a range of topics, some of which appeal mostly to those …

Aligning Reparations And Taxation, Katherine Pratt

William & Mary Journal of Race, Gender, and Social Justice

Rehabilitative reparation remedies advance the important normative goals of intergenerational restorative justice and racial reconciliation. This Article fills a gap in the reparations literature by exploring a critical missing piece of reparations—nontaxation of reparation remedies. Historical examples of reparation remedies show how, in the past, a patchwork of tax rules prevented taxation of reparations and advanced the rehabilitative goals of reparation remedies and procedural fairness in tax administration. Conversely, contemporary examples show how current tax law taxes the receipt of reparation remedies, thereby undermining the rehabilitative goals of reparations and procedural fairness.

This Article proposes a new statutory tax exclusion …

How And Why Hundreds Of Preventable Deaths Continue To Occur Behind America's Prison Walls And Jail Cells, Melody Monssen

William & Mary Journal of Race, Gender, and Social Justice

This Note examines how the Prison Litigation Reform Act (PLRA) came to be and the consequences of its passage. The PLRA was largely a response to the growing movement of prisoners’ rights that began in the 1960s and continued until the 1990s. As the Court grew more conservative, the legal system became less receptive to prisoners’ plights. Consequently, PLRA was enacted in an effort to curtail prison litigation. Consequently, conditions in correctional institutions have continued to worsen, leaving prisoners with little recourse. Although the passage of PLRA was justified by claiming that prisoners were bringing frivolous lawsuits, the continued upward …

Life, Liberty, And The Pursuit Of A Sustainable Catch: Using Maine's Right To Food To Encourage Sustainability In The Lobster Industry, Emma Rodgers

William & Mary Environmental Law and Policy Review

Every year, millions of sharks, turtles, whales, and other marine life are swept up in fishing gear never meant for them. This collateral damage, known as by-catch, is a persistent and deadly problem in the fishing industry. The World Wildlife Fund (WWF) estimates that around 38 million tonnes of global marine catch each year—40% of all fish pulled from the ocean—is unintended by-catch. Unfortunately, the WWF approximation of annual by-catch likely underestimates the proper amount of by-catch because their estimation includes little information on large marine animals, such as turtles and cetaceans which are also caught in the by-catch process. …

Climate Justice For Puerto Rico: The Right To Stay And Energy Sovereignty, Camila Bustos, Mercè Martí Exposito

William & Mary Environmental Law and Policy Review

Following Hurricane María and subsequent disasters, Puerto Rico has experienced displacement, infrastructure collapse, and intensified economic exploitation through austerity policies championed as part of a disaster capitalist agenda. Climate change threatens self-determination globally, but its impacts are amplified by asymmetrical power relations. For Puerto Rico, climate vulnerability cannot be separated from colonial subordination. The Trump administration’s contemptuous response to María, PROMESA’s imposition of austerity, and the redirection of renewable energy funding toward fossil fuel infrastructure—each reveals how climate injustice compounds colonial injustice.

Drawing on international human rights law—particularly the rights to self-determination and to stay—we examine how Puerto Ricans assert …

Conflict As Catalyst: The Role Of Conflict In Creating Political Space For Women, Christie S. Warren

Faculty Publications

Although the benefits associated with the presence of women in political decision-making positions are uncontested, global statistics relating to the number of women in political leadership roles paint a disappointing picture of underutilized resources. While rights-based advocacy, quotas, and economic incentives are commonly posited as effective strategies to increase the number of women active in public spaces, several studies have shown that the law alone is not sufficient to bring about changes in gender norms unless the underlying structural constructs that perpetuate inequalities privileging dominant groups are addressed first. Conflict, especially when driven by rejection of those inequalities, can hasten …

Keynote: Going Forward After Grants Pass, Joseph W. Mead

William & Mary Law Review

In this keynote, I explain the decision—and the stakes—of City of Grants Pass v. Johnson. In Grants Pass, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no barrier to cities making it a crime for their homeless residents to sleep outdoors with as little as a blanket, even when those residents have no other option. Grants Pass, Oregon undertook an aggressive campaign to drive unhoused residents out of the city through punitive ordinances that criminalized unavoidable human conduct, such as sleeping with a blanket. The plaintiffs challenged the narrowest version of these …

Unacceptable In Any Era: The Unusual And Unconstitutional Effort To Criminalize Sleeping While Homeless, Joseph W. Mead, Shelby Calambokidis

William & Mary Law Review

Grants Pass, Oregon, effectively made it a crime for some of its homeless residents to sleep—a universal and unavoidable biological necessity. In a 2024 decision, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause posed no obstacle to this law, but it emphasized that other constitutional provisions could place important limits on how cities treat their homeless residents.

This Article argues that modern laws criminalizing sleeping— especially when no shelter is available—represent an unprecedented and unconstitutional departure from centuries of American legal tradition. Tracing the evolution of vagrancy, poor relief, and settlement laws from the Statute …

Skrmetti And The Problem Of Incidental Intent, Martin Katz

William & Mary Law Review

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

William & Mary Journal of Race, Gender, and Social Justice

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

William & Mary Journal of Race, Gender, and Social Justice

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

A Comparative Financial Analysis Of Louisiana's Land-Grant Universities: The Morrill Acts And Brown Revisited, William F. Tate Iv, Keena N. Arbuthnot

William & Mary Law Review

Despite a federal legislative mandate on states to support land-grant HBCUs in a fair and equitable fashion, the funding disparities [between land-grant Historically Black Colleges and Universities (HBCUs) and non-HBCU land-grant universities] accrued for decades and ostensibly for more than a century. Our purpose in this review is to explain the history, nature, and scope of this funding disparity. We are particularly interested in how Brown v. Board of Education (Brown I and Brown II) and related litigation and desegregation policy shaped this history. To narrow the scope of the review, we localize the problem to Louisiana. A …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia González, Mara Schiff

William & Mary Journal of Race, Gender, and Social Justice

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

William & Mary Journal of Race, Gender, and Social Justice

What the LGBTQ rights movement needs, especially with regard to legal challenges, is a lasting philosophical shift toward the idea that justice and equality are an infinite game rather than a finite and pragmatic one. This work here will explore why this posture is favorable at this moment—and generally in civil rights work. Beyond connecting queer sacrifice in recent Supreme Court cases to the functioning and maintenance of the American settler colonial project, this Article will posit why a strategy shift toward infinite thinking is increasingly necessary for more resolute work that results in the autonomy and equality of LGBTQ …

Identity And Procedural Subordination In Lgbtq Religious Exemption Cases, Kyle C. Velte

William & Mary Journal of Race, Gender, and Social Justice

This Article proceeds in four Parts. Part I summarizes the legal literature on procedural injustice. Part II briefly describes the white Christian nationalism movement, its connection with the LGBTQ civil rights movement, and contends that it is an identity-based movement akin to traditional identity-based civil rights movements. Part III summarizes the holdings of the Religious Exemptions Trilogy [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis] and makes the argument that they are strongly procedural decisions. Part IV contends that the Court has engaged in identity-based …

303 Creative Llc, Public Accommodations Law, And The Many Possible Futures Of Rights, Jacob Eisler

William & Mary Bill of Rights Journal

The unifying theme of the contributions to this Collection of Essays on 303 Creative LLC, which emerged from a panel held at the 2024 American Association of Law Schools meeting, is that while 303 Creative LLC may have brought these themes forward, their full expositions lie in the hands of Supreme Court jurisprudence that is yet to come...

In exploring these possibilities, this Collection seeks to anticipate what might come next for both the First Amendment and public accommodations law.

This abstract has been taken from the author's introduction.

Law Office History And The Unrelenting Attack On Public Accommodations Law, James M. Oleske Jr.

William & Mary Bill of Rights Journal

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also …

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

William & Mary Bill of Rights Journal

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the …

Inequitable Infrastructure: An Empirical Assessment Of Federalism, Climate Change, And Environmental Racism, Lev E. Breydo

Faculty Publications

This Article explains a critical, yet unexplored issue: How are some communities like Jackson—the 80% Black capital of Mississippi—often left without water or electricity, while their mostly white neighbors are not? The Article maps uncharted territory by interrogating the underlying causes of this disparity, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal …

If Black Lives Really Matter, We Must End Traffic Stops!, Kenneth Williams

William & Mary Journal of Race, Gender, and Social Justice

This Article will argue that African Americans will continue to be fatally shot and killed by police disproportionately and in many cases unjustifiably as long as police are allowed to stop motorists for minor non-violent traffic infractions. These stops do little to combat crime and are not worth the lives they upend and the continued unconstitutional racial discrimination that motivates many of these stops. Although the standards for police use of force need to be reformed and police culture has to be changed, the other reform that is imperative in order to significantly reduce the disproportionate fatal police shootings of …

Naming, Expressive Interests, And The Law: The Implications Of Governmental Form Design, Laura A. Heymann

Faculty Publications

The design of governmental forms can result in restrictions on the ability of individuals to submit truthful personal naming choices, such as when a form field has character limitations or does not accept diacritics. In some instances, form design operationalizes government policy. But in other instances, form design can itself create law by limiting the ability to submit accurate names on the front end. Awareness of the legal implications of form design is critically important. A more inclusive and accurate approach toward the legal documentation of naming choices means that forms should adapt to people, not the other way around.

Remedying The Insular Cases: Providing Tribal Sovereignty To Unincorporated Territories To Ensure Constitutional Rights For All U.S. Nationals And Citizens, Allison Ripple

William & Mary Bill of Rights Journal

This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates …

Policing, Stories, Problems, And Solutions, Katherine Mims Crocker

Popular Media

No abstract provided.

Reducing Community Violence While Protecting Civil Rights, Kami Chavis

Popular Media

No abstract provided.

Civil Rights Without Representation, Joanna C. Schwartz

William & Mary Law Review

Although much recent attention has been paid to qualified immunity, the biggest threat to civil rights enforcement is actually the lack of lawyers able and willing to represent people whose constitutional rights have been violated. There are small, tight-knit communities of civil rights lawyers with expertise and passion in the cities of the Great Migration, but few civil rights attorneys practice outside those urban areas. Limits on attorneys’ ability to recover fees mean that even attorneys willing to take civil rights cases will have financial incentives to decline meritorious cases if they would be expensive to litigate or if the …