Civil Rights and Discrimination Commons^™

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

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The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations …

Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick

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Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort,[1] makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases,[2] even having gone so far as to have called employment discrimination statutes federal torts.[3] This development has created significant concern among scholars,[4] including Professor Sperino herself.[5]

Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a novel approach: she takes the Court at …

Poverty, Dignity, And Public Housing, Jaime Alison Lee

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Antipoverty efforts are persistently subverted by broad societal contempt for poor people. The belief that poor people are morally and behaviorally inferior, and that their personal failings are the cause of their own poverty, is a staple of American opinion polls and political rhetoric. This presumption is so widespread that it even permeates antipoverty programs, which treat poor people with disdain even as they offer aid and assistance.

Income discrimination creates not just social stigma, but legal inequalities. The Supreme Court recognized some forty years ago that welfare law promoted wealth-based Constitutional inequalities, and responded by invoking the doctrines of …

Archcity Defenders: Municipal Courts White Paper, Thomas Harvey, John Mcannar, Michael-John Voss, Megan Conn, Sean Janda, Sophia Keskey

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ArchCity Defenders represents St. Louis' indigent on a pro bono basis in criminal and civil legal matters while working closely with social service providers to connect clients with services. Our primary goal is to remove the legal barriers preventing our clients from accessing the housing, job training, and treatment they need to get on with their lives.

In the five years we have been doing this work, we have primarily focused on representation in the municipal courts that have jurisdiction over infractions for mostly traffic-related offenses. Our direct representation of clients in these courts and the stories they shared of …

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

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This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

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Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Race And Immigration, Then And Now: How The Shift To "Worthiness" Undermines The 1965 Immigration Law's Civil Rights Goals, Elizabeth Keyes

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This essay looks at how far immigration reform has come from the explicit civil rights character of the 1965 immigration law that reshaped America. The optimism surrounding that law’s dismantling of national-origins barriers to immigration proved to be overstated in the intervening decades, as the factors determining an immigrant’s “worth and qualifications” too often became proxies for race. After briefly looking at work done by critical race theorists tracing some of ways race and immigration have long intersected in immigration legal history, the article closely examines modern-day immigration reform proposals, particularly the Senate bill that remains the most complete articulation …

Academic Extremism Threatens Democratic Values (Commentary), Kenneth Lasson

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Veritas vos liberabit, chanted the scholastics of yesteryear — "the truth will set you free." It's hard to see how that mantra could be echoed by latter-day counterparts in the academy. Consider the recent resolution by the American Studies Association that advocated an academic boycott of Israel. Its argument — that Israeli universities are complicit in state policies violating Palestinians' human rights — belies the truth: Israel has long been the most diverse, inclusive and tolerant of any Middle Eastern country.

To Count And Be Counted: A Response To Professor Levinson, Marcia L. Mccormick

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This Essay deepens the discussion Professor Levinson began in his lecture for the Richard J. Childress Memorial Lecture at SLU Law, Who Counts?. Professor Levinson explored the question of who counts as a member of the US community, and who gets to decide who counts. Inevitably, given our history of exclusion on the basis of race and sex, questions about belonging and race and sex form a central part of the current debate. Labeling a person with a race and sex presupposes the questions of what makes a person a certain race or sex? This essay explores what identity …

A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker

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This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

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Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …

The New Jim Crow? Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

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This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or JimCrow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and massincarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker

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According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of …

“To Corral And Control”: Stop, Frisk, And The Geography Of Freedom, Anders Walker

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This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national …

Post-Racial Lending?, Cassandra Jones Havard

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Should lenders have absolute discretion when setting mortgage loan prices regardless of the borrower's creditworthiness? How should a regulatory framework evaluate lending decisions for racial bias to determine if demographic or other variables are used as proxies for race? Congress enacted the Home Mortgage Disclosure Act in order to acquire data on mortgage lending patterns and to discourage geographical disinvestment. Basic HMDA data indicates that mortgage loan applications from black and Hispanic households are more likely to be denied than are applications from whites. Loan denial rates for blacks, Hispanics, and Asians are higher than white applicants at all income …

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

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On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis …

Unfinished Business: Protecting Voting Rights In The Twenty-First Century, Gilda R. Daniels

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While minorities have experienced great progress because of the Voting Rights Act, particularly section 5 of the Act, the work to achieve an electoral process free of discrimination remains unfinished. In Shelby County v. Holder, the Supreme Court struck down section 4 of the Act, which provided the coverage formula through which section 5 was implemented. Without section 4, there is no section 5. The historical and contemporaneous discrimination that minorities in states formerly covered under section 5 continue to face is substantial and outpaces that in noncovered states. Scholars cannot divorce the debate surrounding section 5’s constitutionality, which continues …

The Dangers Of Psychotropic Medication For Mentally Ill Children: Where Is The Child’S Voice In Consenting To Medication? An Empirical Study, Donald H. Stone

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When a child with a mental illness is being prescribed psychotropic medication. who decides whether the child should take the medication — the parent or the child? What if the child is sixteen years of age? What if the child is in foster care: Should the parent or social service agency decide? Prior to administering psychotropic medication, what specific information should be provided to the person authorized to consent on behalf of the child? Should children be permitted to refuse psychotropic medications? If so, at what age should a child he able to refuse such medication What procedures should be …

Lining Up: Ensuring Equal Access To Vote, Gilda R. Daniels

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This booklet ( a joint project of the Advancement Project and the Lawyer's Committee for Civil Rights Under Law) provides an extensive overview of restrictive voting laws, especially concerning minority voters. Daniels begins with a summary of voter obstructions and intimidation in the 2012 election, and then places that within the context of the history of voting and race in America.

Most recently, the Section 5 protections of the Voting Rights Act of 1965 were effectively removed by the Shelby County v. Holder Supreme Court decision. Daniels then explains what this means practically and legally for minority voters and how …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

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No abstract provided.

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

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In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

It's Not Just Name Calling, Kenneth Lasson

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I’m afraid that universities, which like to perceive themselves as places of culture in a chaotic world, are not quite that wonderful. Of course, some are better than others; not all of them are hotbeds of radical turmoil, but a disturbing number have come to be focal points of loud and strident opposition to the state of Israel.

Although the volume of overt antisemitic acts may have in fact declined over the past few years, there has been a significant increase in anti-Zionist rhetoric and activity on campuses around the country and around the world. The two concepts are not …

The Virtue Of Obscurity, Colin Starger

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The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational …

Constitutional Limitations On Closing The Gender Gap In Employment, Marcia L. Mccormick

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Despite our country’s efforts to eliminate it, there remain pay and achievement gaps between men and women in the workplace. This article summarizes legal approaches to close the gap, constitutional developments that have slowed government’s power to address the inequality, worrisome trends in recent cases, and the implications of these. This article proposes a future of utilizing congress’s taxing power to address inequalities.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor

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Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …

Reimagining Merit As Achievement, Aaron N. Taylor

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Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

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After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Fisher's Fishing Expedition, Vinay Harpalani

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This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of 'critical mass' and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions.