Civil Rights and Discrimination Commons^™

The Right To Counsel In Criminal Cases, A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Publications

No abstract provided.

Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone

Faculty Publications

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …

Forty Years After Title Vii: Creating An Atmosphere Conducive To Diversity In The Corporate Boardroom, Donald J. Polden

Faculty Publications

This article analyzes affirmative action in employment: one of the most controversial government policies of the last decade, and one that continues to divide the passions and sensibilities of Americans. This article also addresses the effects of Title VII on employment opportunities for women. In particular, the article considers how successful the fundamental policies of Title VII have been in increasing diversity on corporate boards of directors, and investigates whether increased diversity will improve the performance of publicly traded companies.

Reopening The Emmett Till Case: Lessons And Challenges For Critical Race Practice, Margaret M. Russell

Faculty Publications

As part of the symposium panel on "Re- Trying Racial Injustices," I devote this Essay to an expansion of themes addressed in my earlier work on the reopening of civil rights era prosecutions. I draw upon this work, as well as upon the insights of my co-panelists Anthony Alfieri and Sherrilyn Ifill, to examine the reopening of the Emmett Till case and its critical race practice possibilities.

In this Essay, I consider other aspects of these "cleansing moments." Are they illusory? Do they provide a misleading sense of closure at the expense of the ongoing hard work of racial justice …

A Commander's Power, A Civilian's Reason: Justice Jackson's Korematsu Dissent, John Q. Barrett

Faculty Publications

Robert Houghwout Jackson was a justice of the United States Supreme Court during the years of World War II. This article considers his great but potentially perplexing December 1944 dissent in Korematsu v. United States, in which he refused to join the Court majority that proclaimed the constitutionality of military orders excluding Japanese Americans from the West Coast of the United States during the War years. This article considers Justice Jackson's Korematsu dissent in full. It was and is, contrary to some of the criticisms it has received over the past 60 years, a coherent position. Jackson's dissent is also …

Beyond Breimhorst: Appropriate Accommodation Of Students With Learning Disabilities On The Sat, Nancy Leong

Faculty Publications

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

Immigration And The Allure Of Inclusion, Ediberto Román

Faculty Publications

Essentially, all immigrant stories concern labels and their consequences, including the fiction of the legal and illegal "alien. ' These labels in turn are created by immigration regimes that have the effect of establishing identities of both welcomed and unwelcome newcomers into a society. These fictions or labels occur within what can be described as the legal fiction of the nation-state. In many respects, all immigrant debates and accounts are tales of inclusion and membership within legal frameworks that decide which groups of people are deemed worthy of eventual formal membership within a political structure. Indeed, the label of "alien" …

Bringing In The State: Toward A Constitutional Duty To Protect From Mob Violence, Susan S. Kuo

Faculty Publications

Mob violence can inflict devastating costs. Although typically wrought by private individuals, the incidence of riot as well as extent of riot harm often turn on the adequacy of police preparation and planning. Under the English common law, local governments were responsible for providing riot protection for their denizens. In keeping with the English tradition, early state laws in the United States also provided for communal riot responsibility, and when the states ratified the Fourteenth Amendment, state obligations in the riot context were well-established. Despite the common law underpinnings of the governmental duty to protect citizens from mob violence, however, …

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as …

Privacy On The Open Road, Dorothy J. Glancy

Faculty Publications

The discussion begins by describing some of the surveillance techniques and technologies that can affect the privacy of travelers along public roadways. Then the article turns to examine some of the privacy interests of people on the open road. The next part considers some of the many types of legal rights that protect the privacy of people on public roads or highways. The article concludes by addressing the principle that people on the open road have important rights to freedom from intrusions and interferences with their on-the-road activities.

Saving Title Vii: Using Intent To Distinguish Harassment From Expression, Robert Austin Ruescher

Faculty Publications

(Excerpt)

Like two reluctant boxers in a ring, the First Amendment and Title VII of the Civil Rights Act of 1964 have been sparring halfheartedly for years, circling and jabbing each other in courts and law reviews. The bout pits the constitutional right to be free from government censorship against the statutory "right to work in an environment free from discriminatory intimidation, ridicule, and insult." As stated by the Supreme Court in another context, it pits "the First Amendment rights of the speaker" against "the protection the statute provides for the unwilling listener."

Both the First Amendment and Title VII …

"We Are An Equal Opportunity Employer": Diversity Doublespeak, Cheryl L. Wade

Faculty Publications

There are too few discussions about race and race relations among corporate managers and directors. The rhetoric used in these infrequent discussions revolves around the idea of diversity in the workplace. In recent years, when speaking about employees and race issues, corporate actors have become curiously silent about discrimination and racism. This Article provides several examples of the rhetorical devices used by corporate spokespersons that ignore persisting problems with discrimination and racism by focusing solely on diversity efforts. Diversity rhetoric allows corporate managers to avoid responsibility for enduring discrimination in the workplace. Diversity efforts, without antidiscrimination efforts, increase the likelihood …

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the fall of 2000, six-year-old male Zachary from a small town in Ohio, claimed that s/he was a girl and requested, from now on, to be called Aurora. When the child's parents honored this unusual wish and made efforts to make official the child's feminine identity, the case turned into a custody battle between the parents and the state of Ohio. Although the child was occasionally treated as a girl at home from the age of two, the attempt to register the child in public school as a girl motivated the state dissolution of this family. At the …

Under The Empirical Radar: An Initial Expressive Law Analysis Of The Ada, Michael Ashley Stein

Faculty Publications

No abstract provided.

Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas

Faculty Publications

No abstract provided.

Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman

Faculty Publications

No abstract provided.

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.

Explaining Grutter V. Bollinger, Neal Devins

Faculty Publications

No abstract provided.

Sex Plus Age Discrimination: Protecting Older Women Workers, Nicole Buonocore Porter

Faculty Publications

There is little doubt that sexism and ageism still exist. To remedy these "isms," there are laws to protect both women and older workers from discrimination in the workplace, namely Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits sex discrimination as well as discrimination based on many other protected categories, and the Age Discrimination in Employment Act of 1967 ("ADEA"), which prohibits age discrimination. Despite these protections, an older woman cannot bring a claim based on the fact that she feels she was discriminated against because she is an older woman. In other words, her …

Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

Faculty Publications

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability far supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer …

Habeas Review Of Perfunctory State Court Decisions On The Merits, Scott Dodson

Faculty Publications

This article discusses the appropriate standard of review a federal habeas court should use to review a state-court determination of federal law unaccompanied by a federally-based rationale. In other words, what standard of review does the federal court employ when the state court’s opinion is wholly composed of the phrases: “The claims are without merit. Denied.”? The Supreme Court has not explicitly resolved the issue, and various federal judges around the country have reached different opinions. This article argues that a close scrutiny of the controlling habeas corpus statute, relevant case law, and policy considerations leads to the conclusion that …

Membership Denied: Subordination And Subjugation Under United States Expansionism, Ediberto Román, Theron Simmons

Faculty Publications

As for the proposal this Article seeks to promote, the length and complexity of this undertaking hopefully demonstrates the difficulty in arriving at an easily identified solution. Century long colonial struggles by several distinct countries and millions of their inhabitants are not easily resolved. Nevertheless, there are certain procedural steps that can be undertaken which may promote the realization of self-determination. The United States should be true to its rhetoric and promote democratic efforts in these lands to achieve autonomy. It is not enough to promote self-determination for other powers' colonies. The subordination of citizens and nationals is not only …

Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History, Thomas E. Baker

Faculty Publications

Tribute to Judge Procter Hug of the United States Court of Appeals for the 9th Circuit, based on a talk adapted from Thomas E. Baker's At War With the Constitution: A History Lesson from the Chief Justice, 14 BYU J. Pub.L. 69 (1999).

It is but a truism that the powers of the government are greatest when the Nation is at war. All of our wartime Commanders-in-Chief have conducted themselves based on this belief. For its part, the Supreme Court has acquiesced in draconian measures undertaken by the Executive that would not be permitted during peacetime. The lasting problem …

New Look At Sexual Harassment Under The Fair Housing Act: The Forgotten Role Of 3604, Rigel C. Oliveri, Robert G. Schwemm

Faculty Publications

This Article argues that § 3604(c) is applicable in virtually every sexual harassment case involving housing and that its applicability means the FHA can be a more effective statute for attacking sexual harassment than Title VII. Part I reviews the law governing sexual harassment in housing, including the role that Title VII precedents have had in shaping this law. Part II shows how § 3604(c) goes further than its Title VII counterpart in prohibiting statements that are often at the heart of a sexual harassment claim and identifies some specific situations in which § 3604(c) may be helpful in challenging …

Comment On The Age Discrimination Example, Dale A. Nance

Faculty Publications

Comment on the Federal Judicial Coneter's Research Divission's protorype for computer assisted education of judges with regard to the statistical analysis of evidence.

Book Review Of Anti-Discrimination Law And The European Union, Michael Ashley Stein

Faculty Publications

No abstract provided.