Civil Rights and Discrimination Commons^™

The Purposes Of Title Vii, Chuck Henson

Faculty Publications

Some things have an obvious and enduring purpose. The purpose of a hammer is to drive nails. The purpose of a saw is to cut wood. The purpose of nails is to fasten, for example, the freshly cut wood by being driven by a hammer. For other things, like Title VII of the Civil Rights Act of 1964 ("Act" or "1964 Act"), purpose seems mutable or hidden. For example, finishing the sentence today: "The purpose of Title VII is . . ." presents a problem. It has presented the same problem since 1964. What Title VII does is not obvious …

Caught By The Cat's Paw, Sandra F. Sperino

Faculty Publications

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the "cat's paw," formally recognized by the U.S. Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat's paw has taken ground quickly, discussed in hundreds of cases. The Supreme Court recognized the cat's paw theory in a case where a hospital fired a worker. The person who made the ultimate decision did not have impermissible bias. However, her decision was influenced by …

Due Process And Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Policies restricting immigration and citizenship play a significant role in the current political environment. The implementation of the travel ban, litigation over DACA, and a narrowing of citizenship opportunities for members of the armed forces have all made headlines in the last two years. Along with those policies, the Trump administration has also significantly increased efforts to strip citizenship from individuals alleged to have gained it improperly.

Revocation of citizenship used to focus primarily on former Nazis and other war criminals hiding from justice in the United States. Now, through programs called Operation Janus and Operation Second Look, the Trump …

Harassment: A Separate Claim?, Sandra F. Sperino

Faculty Publications

In 2017, media attention focused on sexual harassment as victims reported harassment and assault as part of the #MeToo movement. Although many of the accounts focused on sexualized treatment, this treatment often occurred within a broader context of unequal treatment, such as pay inequality and the disproportionately low promotion rate of women into leadership positions. For decades, legal scholars have noted the interplay between broader work constructs and harassment.

This Article argues that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court's jurisprudence surrounding harassment. Unfortunately, this error represents the dominant view among federal …

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Faculty Publications

(Excerpt)

Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.

The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional …

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

Faculty Publications

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Preferencing Educational Choice: The Constitutional Limits, Derek Black

Faculty Publications

Rapidly expanding charter and voucher programs threaten a new education paradigm in which access to traditional public schools is no longer guaranteed in some communities. In some instances, choice programs are phasing out traditional public schools altogether. The most harmful effects of choice, however, occur at the local level, not the state level. Thus, this Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies limitations that state constitutional rights to adequate and equal education place on choice policy.

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that …

Restoring Fairness To Campus Sex Tribunals, Cynthia Ward

Faculty Publications

No abstract provided.

Sexual Harassment Of Low-Income Women In Housing: Pilot Study Results, Rigel C. Oliveri

Faculty Publications

In recent months, high-profile and influential figures in media, government, and entertainment have been brought down by credible allegations that they have engaged in sexual misconduct. These revelations have sparked an important national discussion about the prevalence of sexual harassment in American society and the ways in which powerful people can use their positions both to exploit their vulnerable targets and to escape the consequences of their actions.

The conversation is a necessary starting point, but the focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one overlooked, significant national problem: the sexual …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Faith-Based Emergency Powers, Noa Ben-Asher

Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument …

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 …

How University Title Ix Enforcement And Other Discipline Processes (Probably) Discriminate Against Minority Students, Ben L. Trachtenberg

Faculty Publications

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement - launched with the best of intentions in response to real problems - almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus-including broad and vague definitions of offenses, limited access to legal counsel, and …

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection …

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 …

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 …

In The Shadow Of Gaslight: Reflections On Identity, Diversity, And The Distribution Of Power In The Academy, Cyra Akila Choudhury

Faculty Publications

This essay explores identity and diversity in the Academy through the work of feminist philosopher, Sara Ahmed. It makes two interventions. First, it sketches the use of identity politics from the 1980s and 1990s as a tool of resistance against assimilation and erasure to its current uses sometimes as a tool of discipline within minority groups. Second, it raises the problem of the cooptation of identity by institutions to maintain the status quo. In the hands of institutions and as a metric for progress, diversity can mask ongoing subordination and create doubt in the minds of minorities about whether what …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Publications

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

Effective Compliance With Antidiscrimination Law: Corporate Personhood, Purpose And Social Responsibility, Cheryl L. Wade

Faculty Publications

I begin the essay with an examination of the overlap between corporate governance and corporate social responsibility. After doing so, I explore the notions of corporate personhood and purpose in order to suggest ways to make compliance programs less cosmetic and defensive and more meaningful and effective. I conclude that the decision making that is inherent in corporate governance is an important factor in the corporate social responsibility equation. There is a gap that separates the fulfillment of fiduciary duties (including the installation and upkeep of a compliance program) and best practices. Companies and their managers can win litigation, or …

Pregnancy, Thomas Simmons

Faculty Publications

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 …

Civil Liberties And Rights, Equality And The Quality Of Democracy In Greece, Constantine Danopoulos

Faculty Publications

Good quality democracy is considered one that provides its citizens with a high degree of personal freedom, political equality, and popular control over policies and public officials through the legitimate and lawful functioning of stable institutions. It is assessed through an interrelated and interconnected three dimensional scheme: procedure, content, and result. Procedure refers to the quality of governance and is assessed through the rule of law, participation, competition, and government accountability. Result involves citizen satisfaction with the quality of governance. Content is concerned with two key components: individual liberties and political and social equality. This paper will assess the quality …

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

For Shame: When High-Profile Shaming Is The Only Way To Get Things Discussed And Done, Kerri Lynn Stone

Faculty Publications

In recent years, the sports world has experienced a complex relationship with sex discrimination and bullying. On one hand, well-publicized incidents of bullying, domestic violence, discrimination, and abuse have operated to alienate players, teams, and leagues from many of their fans. In some cases, these incidents have even led to rehabilitative public relations campaigns to combat the damage done to their public image. On the other hand, the fact that so many high profile incidents have occurred in such a public, much-talked-about sphere has actually served to aerate and vet issues in the court of popular opinion that would otherwise …

Intersectionality Problems With Gendered Disability Discrimination, Thomas Simmons

Faculty Publications

No abstract provided.

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Faculty Publications

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not …

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Faculty Publications

(Excerpt)

In a tragic case that received international attention, 15-year-old Phoebe Prince killed herself after being bullied—both physically and online—by some of her classmates. Phoebe had moved to Massachusetts from a small town in Ireland, enrolling as a freshman at South Hadley High School. After a brief relationship with a popular boy in the senior class, the taunting by her classmates began. Some students called her an “Irish slut” and a “whore,” knocked things out of her hands, and sent her threatening texts. Some of the students used Facebook and Twitter to speak badly about her. Phoebe suffered this treatment …

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Religion, Liberty, And The Jurisdictional Limits Of Law [Review], Edited By Iain T. Benson And Barry W. Bussey, Nicholas P. Miller

Faculty Publications

"In recent years law and religion scholarship in Canada has grown significantly. This distinctive collection of 18 papers addresses, from a variety of angles, the jurisdiction of law itself and limits of law – an important but often overlooked aspect of settling the boundaries of church and state, religion and law."

Beyond Disparate Impact: How The Fair Housing Movement Can Move On, Rigel C. Oliveri

Faculty Publications

Disparate impact theory is a vital tool for fair housing advocates. It allows them to challenge institutional behaviors that harm minority groups and municipal practices that perpetuate long-standing segregated patterns, without having to go through the difficult process of identifying a specific bad actor with explicitly discriminatory motives. Disparate impact theory has been a failure for fair housing advocates. It is overly complicated, infrequently used, and seldom leads to plaintiff success. Moreover, the availability of this theory has led to the underdevelopment of the law surrounding intentional discrimination, which has ultimately made all cases with circumstantial evidence more difficult to …