Civil Rights and Discrimination Commons^™

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

The Dignity Of Equality Legislation, Olatunde C.A. Johnson

Faculty Scholarship

In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," …

Over The Borderline-A Review Of Margaret Price's Mad At School: Rhetorics Of Mental Disability And Academic Life, Gregory M. Duhl

Faculty Scholarship

This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt

Faculty Scholarship

This Article offers a review of Angela Onwuachi-Willig’s wonderful book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Race scholars have begun to productively deploy structuralism to discuss cumulative racial disadvantage and the ongoing, racially segregative effects of government systems and policies.
of such systems on intimate choice and family formation. Likewise, some scholars have employed structuralism to explore how law shapes our intimate preferences and opportunities for intimate engagements.
 Still, scholars of this very exciting work have not yet engaged as fully as they might regarding questions of race. This Article contends that …

State Speech And Political Liberalism, Abner S. Greene

Faculty Scholarship

Jim Fleming and Linda McClain have written an impressive book on the responsible exercise of rights, which flows from prior writing by each.Their title, "Ordered Liberty," is a bit of a misnomer, however. When one thinks of that phrase, one thinks of the ways in which we balance liberty against order, i.e., against security, police power, controlling the excesses of liberty. Responsibility in the exercise of rights is an aspect of how rights are orderly, but the major hard cases involving rights are hard because significant claims of harm are in play. Think of much of constitutional criminal procedure, free …

Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson

Faculty Scholarship

The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Faculty Scholarship

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

Our Illegal Founders, Victor C. Romero

Faculty Scholarship

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …

The Danger Of Difference: Tensions In Directors’ View Of Corporate Board Diversity, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome

Faculty Scholarship

This Article describes the results from fifty-seven interviews with corporate directors and a limited number of other persons (including institutional investors, search firm personnel, and the like) regarding their views on corporate board diversity. It highlights numerous tensions in these views. Most directors, for instance, proclaim that diverse boards are good, but very few directors can articulate their reasons for this belief. Some directors have suggested that diverse boards work better than non-diverse boards, but gave relatively few concrete examples of specific instances where a female or minority board member made a special contribution related to that director’s race or …

“The Tyranny Of The Majority Is No Myth”: Its Dangers For Legally Married Same-Sex Couples, Barbara Cox

Faculty Scholarship

This article has three sections. Section 1 explains that sexual minorities, consisting of lesbian, gay, bisexual, transgendered, and queer people (LGBTQ), 15 comprise a small number of people within the U.S. and describes the current laws granting and prohibiting legal rights to married or partnered same-sex couples. Thus, the LGBTQ community is dependent on the non-LGBTQ community to decide its rights when those rights are debated at the ballot box, a bad public policy in and of itself. 16 Section II considers the question posed by this symposium: is the tyranny of the majority a danger to minority communities or …

"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education, Erin E. Buzuvis

Faculty Scholarship

Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants …

Dignity, History, And Religious-Group Rights, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Court's Denial Of Racial Societal Debt, Kimberlé W. Crenshaw

Faculty Scholarship

In this year of civil rights anniversaries, the narrative of racial progress has been tempered by the Supreme Court’s game-changing decisions this past summer. The notion that “we’ve come a long way and we have much more work to do” sounds ever more like wishful thinking in the face of a Supreme Court that is no longer an active contributor to the cause. Having abandoned its unprecedented insistence that white supremacy be upended root and branch, the current Court’s boldness is measured by its audacious efforts to reverse engineer the transformative mechanisms these anniversaries celebrate.

Transsexual And Intersex Athletes, Erin Buzuvis

Faculty Scholarship

In her chapter, the Author examines the impact of both past and present policies enacted by many sport organizations, such as the International Olympic Committee (IOC) on intersex and transsexual athletes. At the root of many of these policies, and therefore the issues, are the binary gender system and the concern that fraudulent competitors could gain an advantage relative to the rest of the field. While no longer mandatory, women athletes are still subject to varying degrees of sex verification testing on a case-by-case basis, as evidenced by the 2009 testing of South African runner, Caster Semenya.

Recent policies point …

Intersectionality: Mapping The Movements Of A Theory, Devon Carbado, Kimberlé W. Crenshaw, Vicki M. Mays, Barbara Tomlinson

Faculty Scholarship

Very few theories have generated the kind of interdisciplinary and global engagement that marks the intellectual history of intersectionality. Yet, there has been very little effort to reflect upon precisely how intersectionality has moved across time, disciplines, issues, and geographic and national boundaries. Our failure to attend to intersectionality’s movement has limited our ability to see the theory in places in which it is already doing work and to imagine other places to which the theory might be taken. Addressing these questions, this special issue reflects upon the genesis of intersectionality, engages some of the debates about its scope and …

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

Securing Equal Access To Sex-Segregated Facilities For Transgender Students, Harper Jean Tobin, Jennifer L. Levi

Faculty Scholarship

If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal …

Untoward Consequences: The Ironic Legacy Of Keyes V. School District No. 1, Rachel F. Moran

Faculty Scholarship

The Keyes case began with high hopes that desegregation would lead to educational equity for black and Latino students in the Denver Public Schools. The lawsuit made history by successfully using circumstantial evidence to establish intentional discrimination and bring court-ordered busing to a school system outside the South. In the intervening years, that initial success became laden with irony. Because Denver was a tri-ethnic community of whites, blacks, and Latinos, the litigation revealed the complexities of pursuing reform in a school district not defined by a history of black-white relations.

The courts had to decide whether Latinos would count as …

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …

With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks

Faculty Scholarship

The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs …

Respectable Queerness, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

Not The Marrying Kind: A Feminist Critique Of Same-Sex Marriage/Reconstructing Marriage: The Legal Status Of Relationships In A Changing Society (Book Review), Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie Failinger

Faculty Scholarship

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Feminist Legal Scholarship: A History Through The Lens Of The California Law Review, Katharine T. Bartlett

Faculty Scholarship

This Essay describes the evolution of feminist legal scholarship, using six articles published by the California Law Review as exemplars. This short history provides a window on the most important contributions of feminist scholarship to understandings about gender and law. It explores alternative formulations of equality, and the competing assumptions, ideals, and implications of these formulations. It describes frameworks of thought intended to compensate for the limitations of equality doctrine, including critical legal feminism, different voice theory, and nonsubordination theory, and the relationships between these frameworks. Finally, it identifies feminist legal scholarship that has crossed the disciplinary bound-aries of law. …

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …