Civil Rights and Discrimination Commons^™

Restoring Fairness To Campus Sex Tribunals, Cynthia Ward

Faculty Publications

No abstract provided.

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.

Ending Harassment By Starting With Retaliation, Nicole Buonocore Porter

Faculty Publications

This Essay posits that the fear of retaliation significantly contributes to the problem of harassment—we cannot hope to end harassment without starting by addressing the reality of retaliation. Although some scholars have argued that the fear of retaliation is one reason women don’t report harassment, and some scholars have discussed the inadequacies of anti-retaliation law, this Essay breaks new ground by arguing that ending harassment must start with preventing retaliation. Part I backs up what seems to be a commonsense proposition: Many victims of harassment do not report it because they fear retaliation.5 Part II then describes the difficulty in …

It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin

Popular Media

No abstract provided.

Walking While Trans: Profiling Of Transgender Women By Law Enforcement, And The Problem Of Proof, Leonore F. Carpenter, R. Barrett Marshall

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

No abstract provided.

The Violent State: Black Women's Invisible Struggle Against Police Violence, Michelle S. Jacobs

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

No abstract provided.

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Exploring The Boundaries Of Obergefell, Andrew J. Pecoraro

William & Mary Law Review

No abstract provided.

Has The Future Already Been Forgotten? A Post-2007 Transgender Legal History Told Through The Eyes Of The Late, (Rarely) Great Employment Non-Discrimination Act, Katrina C. Rose

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

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer

Faculty Publications

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …

“Meaningful Access” Demands Meaningful Efforts: The Need For Greater Access To Virginia State Courts For Limited English Proficient Litigants, Carolyn Harlamert

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

No abstract provided.

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Faculty Publications

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

Section 5: Civil Rights And Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Trouble With Racial Quotas In Disparate Impact Remedial Orders, Wencong Fa

William & Mary Bill of Rights Journal

Justice Scalia’s concurring opinion in Ricci v. DeStefano highlighted severe conceptual tensions between the Equal Protection Clause of the Fourteenth Amendment, which protects individuals from racial discrimination, and disparate impact liability, which protects racial groups from adverse effects. Last year’s Supreme Court decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. suggested that disparate impact liability under the Fair Housing Act was constitutionally unproblematic because successful fair housing lawsuits over the past four decades have led to only race-neutral remedial orders enjoining the practice causing the disparate impact.

This Article analyzes the constitutionality of another …

Madonnas And Whores In The Workplace, Jessica Fink

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

Much has been written about “lookism”—the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a sex discrimination plaintiff alleged “reverse-lookism,” claiming that her male employer terminated her long-term employment because she was too physically attractive, thus tempting the employer to consider entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for sex discrimination. As one might expect, uproar ensued, with the media, the public, and the academic …

Jack & Jill Take Lots Of Pills, But Jill Comes Tumbling After: Gender Inequality In Privately Funded Early Phase Clinical Trials, Shana F. Oppenheim

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

No abstract provided.

Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie

William & Mary Bill of Rights Journal

No abstract provided.

Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser

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

No abstract provided.

Allyship To The Intersex Community On Cosmetic, Non-Consensual Genital "Normalizing" Surgery, Robert Hupf

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

No abstract provided.

Toward A Socially Responsible Application Of The Criminal Law To The Problem Of Street Harassment, Maeve Olney

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

No abstract provided.

Married On Sunday, Fired On Monday: Approaches To Federal Lgbt Civil Rights Protections, Lisa Bornstein, Megan Bench

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

No abstract provided.

Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green

William & Mary Bill of Rights Journal

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …

Habeas Corpus Petitions In Federal And Tribal Courts: A Search For Individualized Justice, Carrie E. Garrow

William & Mary Bill of Rights Journal

No abstract provided.

Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Protecting Privacy To Prevent Discrimination, Jessica L. Roberts

William & Mary Law Review

A person cannot consider information that she does not have. Unlawful discrimination, therefore, frequently requires discriminators to have knowledge about protected status. This Article exploits that simple reality, arguing that protecting privacy can prevent discrimination by restricting access to the very information discriminators use to discriminate. Although information related to many antidiscrimination categories, like race and sex, may be immediately apparent upon meeting a person, privacy law can still do significant work to prevent discrimination on the basis of less visible traits such as genetic information, age, national origin, ethnicity, and religion, as well as in cases of racial or …

A Crowded Room Or The Perfect Fit? Exploring Affirmative Action Treatment In College And University Admissions For Self-Identified Lgbt Individuals, Herbert C. Brown Jr.

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

This Article explores affirmative action treatment for self-identified LGBT individuals in college and university admissions. This Article seeks to explain that while granting affirmative action treatment to self-identified students in the admission process is constitutional, under the current affirmative action precedent, there is a lack of sufficient justification for such an expansion. This Article will also explore the advantages and disadvantages should colleges and universities choose to implement affirmative action programs for LGBT applicants.

Section I of this Article will begin by depicting the evolution of affirmative action programs since their inception in the early 1960s. This section will also …

Employment Discrimination Against Bisexuals: An Empirical Study, Ann E. Tweedy, Karen Yescavage

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

No abstract provided.