Civil Rights and Discrimination Commons^™

Highways And Bi-Ways For Environmental Justice, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this essay is to discuss the past, present, and future of the environmental justice movement as illustrated by the highway between Selma and Montgomery in Alabama and the highway system surrounding the City of Atlanta in neighboring Georgia. The essay is divided into three parts. The first part describes environmental justice, seeking both to place it in a broader historical perspective and to discuss how it relates to civil rights law and environmental law. The second part undertakes a closer examination of the challenges presented by efforts to fashion positive law to address environmental justice norms. This …

Accommodating The Public Sphere: Beyond The Market Model, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This Essay has two major components. First, in Parts I and II, I describe and critique the Court's opinion in Dale, beginning with an examination of the social origins of scouting, then proceeding to an analysis of Dale. Second, in Parts III and IV, I place the questions raised in Dale in another context in which they belong but are seldom analyzed, that of the jurisprudence of public accommodations laws . . . In conclusion, I join the two major themes by framing Dale's claim as the latest in a series of cases that have invoked an evolving understanding of …

Proportional Equality: Readings Of Romer, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

One of the great enigmas of equal protection law is Romer v. Evans. In finding sufficient power in the rational basis test to invalidate a state constitutional amendment enacted by popular vote, the Supreme Court left legal scholars in its doctrinal dust, puzzled over the answers to multiple questions. Was this a new rational basis test? If so, how could one know when to apply it? Had the standard of review for state acts adversely affecting lesbian, gay and bisexual Americans changed? If so, to what? Had Bowers v. Hardwick been overruled? If so, why?

Secrecy, Guilt By Association, And The Terrorist Profile, David Cole

Georgetown Law Faculty Publications and Other Works

In this essay, I will argue that the use of secret procedures and guilt by association in immigration trials is not only unconstitutional but counterproductive. I will begin with a case study, then discuss in turn the practices of secret evidence and guilt by association, and finally conclude with a consideration of how these two tactics perpetuate invidious stereotypes about Arabs and Muslims.

Twins At Birth: Civil Rights And The Role Of The Solicitor General, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today about two such offspring of that war, and the extent to which, like many sibling pairs, they have influenced each other's development. The first child - the most well-known progeny of the Civil War - was this country's commitment to civil rights. The war, of course, ended slavery. But it did not - and could not - …

Gay People, Trans People, Women: Is It All About Gender?, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A few gay rights theorists have long pointed out that discrimination on the basis of sexual orientation can be conceived of as discrimination based on sex. But those of us who play primarily in the legislative or litigation arenas have largely ignored the practical applications of that insight. In this brief essay, I want to consider whether it makes sense for gay rights legislative advocates and litigators to continue to downplay the gender non-conformity aspects of gay sexual orientation . . . the first part of this essay reviews activities that occurred between 1993 and 2001 regarding coverage of gender …

Crossing The River Of Blood Between Us: Lynching, Violence, Beauty, And The Paradox Of Feminist History, Emma Coleman Jordan

Georgetown Law Faculty Publications and Other Works

Understandably, early feminist legal theory and history focused almost exclusively on establishing white women's autonomy against white male dominance. The vehicles of nineteenth century women's liberation included elements of public equality such as ownership of property, the right to vote, access to male dominated occupations, equal education and employment opportunity. Twentieth century feminists extended the equality project by penetrating the "private" sphere and attacking the very notion of a separate zone of family relations which was immune from government intervention to protect women from male abuse. Cultural feminists like Carol Gilligan took another approach, arguing that women's experiences as sexual …

Sexuality And Civil Rights: Re-Imagining Anti-Discrimination Laws, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways …

Expressive Identity: Recuperating Dissent For Equality, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Constitutional law has made a mess of the relationship between expression and equality. Much of the time, the two claims exist in sharp conflict, as in recent Supreme Court cases involving hate speech' and the effort by a gay and lesbian group to march in a St. Patrick's Day parade. In those cases, equality claims collided head-on with defenses based on a First Amendment right to express anti-equality values. In other instances, such as debates about whether viewpoint diversity can serve as a justification for affirmative action, or whether race-conscious redistricting can serve as a proxy for political interests under …

Writing Off Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …

Discrimination Based On Hiv/Aids And Other Conditions: "Disability" As Defined Under Federal And State Law, Lawrence O. Gostin, David W. Webber

Georgetown Law Faculty Publications and Other Works

In this Article, we examine the disability definition "problem" from the standpoint of HIV infection, specifically HIV infection in its "asymptomatic" phase . . . We begin by summarizing the need for federal nondiscrimination standards offering protection for individuals with HIV. We then provide a brief discussion of the definition of disability under the resulting legislation, the Americans with Disabilities Act of 1990 (ADA). We summarize the early judicial and administrative views of the ADA as protecting individuals with HIV. We next turn to judicial interpretation of the ADA in cases in which that understanding has been disputed, including, most …

Damage Control? A Comment On Professor Neuman’S Reading Of Reno V. Aadc, David Cole

Georgetown Law Faculty Publications and Other Works

This comment responds to an article by Professor Gerald Neuman on the Supreme Court's recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can …

Dignity And Discrimination: Toward A Pluralistic Understanding Of Workplace Harassment, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Part I of this article briefly examines some of the drawbacks and inconsistencies of Title VII sexual harassment jurisprudence and shows that Title VII does not provide an adequate framework for understanding many common forms of workplace harassment. Title VII is unquestionably a critical means of fighting against workplace discrimination; however, by emphasizing discrimination at the expense of dignity, the Title VII workplace harassment paradigm provides an incomplete understanding of the wrongs of workplace harassment.

Part II of this article asserts the importance of an approach to sexual harassment that distinguishes between the nature of the harm of workplace sexual …

Hanging With The Wrong Crowd: Of Gangs, Terrorists, And The Right Of Association, David Cole

Georgetown Law Faculty Publications and Other Works

Part I will sketch the current contours of the right of association, a right limited to "expressive" and "intimate" association, and will describe the government's attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court's limitation of associational rights to expressive and intimate associations and the government's attempt to distinguish association from conduct are unworkable, inconsistent with the Court's own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, …

Gideon's Muted Trumpet, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Once the darling of the legal academy, criminal procedure has fallen into disrepute. Thirty-five years ago, when Gideon was decided, criminal procedure was the flagship of constitutional law, criminal defense attorneys were heroes, and courts and lawyers were perceived as themselves agents of social justice. Today, there are still heroes. But the conventional wisdom, within the academy and the country at large, no longer associates criminal law or procedure with heroism. Indeed, in some quarters, criminal procedure has become the enemy. Increasingly, scholars urge revisionism, popular pundits brand procedural innovations as a loss of "common sense," and philosophers warn that …

Affirmative Action And Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The contemporary debate about race in the United States is perplexing. Each side seems genuinely to feel distressed at the demands being made by the other. Racial minorities point to Dred Scott's insistence on racial castes, Plessy's endorsement of official segregation, and Brown's reluctance to remedy unlawful discrimination as evidence that the white majority is inevitably inclined to advance its own interests at minority expense. Minority group members, therefore, tend to argue that the only way to arrest this majoritarian inclination is through the use of race-conscious remedial programs that will ensure an equitable distribution of resources. Most members of …

Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West

Georgetown Law Faculty Publications and Other Works

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …

Skeptical Scrutiny Of Plenary Power: Judicial And Executive Branch Decision Making In Miller V Albright, Cornelia T. Pillard, T. Alexander Aleinikoff

Georgetown Law Faculty Publications and Other Works

In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United …

Lawyering For Social Justice, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is an honor, albeit a sad one, to be invited to write this Essay in commemoration of Tom Stoddard and as commentary on his final publication.

I first met Tom in the late 1970s, when we both joined the Board of Directors of the Lambda Legal Defense and Education Fund. Both of us were American Civil Liberties Union staff attorneys, Tom for the New York Civil Liberties Union (NYCLU) and I for the Reproducfive Freedom Project in the national office. Later, for the last half of the 1980s, Tom was the Executive Director of Lambda during the same period …

Proposition 209, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I have a proposition for you. It's called Proposition 209. All you have to do is stop discriminating in favor of women and racial minorities, and your perpetual problems of race and gender discrimination will finally disappear. If this Proposition sounds too good to be true ... well, you know how the saying goes. In law, as in life, the seductiveness of a proposition owes as much to its disregard of established norms as to its underlying content. Eliminate the affront to social convention, and a proposition promises about as much excitement as a routine liaison with one's spouse. But …

Advocacy Scholarship And Affirmative Action, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

The books, The New Color Line by Paul Craig Roberts and Lawrence M. Stratton, and We Won't Go Back by Charles R. Lawrence III and Mari J. Matsuda, debate the problem of reform and overreaching in tough, advocacy-oriented prose. The first argues that racial reform was necessary but has gone too far-has even become morally self-corrupting-by its adoption of quotas and affirmative action. The second argues that racial reform was necessary and that we need more, not less affirmative action, and not only for blacks, but for women, Asian-Americans, Chicanos, poor people, and generally all "subordinated classes." Its title, therefore, …

Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell." Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong." Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery …

Don’T Gut Political Asylum, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

For many years, the United States has granted political asylum to victims of persecution who come to our country and seek our protection. Now, however, Congress is on the verge of abolishing the right of political asylum.

Congress is not proposing to repeal the asylum provisions of the Refugee Act of 1980. An outright repeal would probably never pass, because many in Congress, recalling America's sorry treatment of refugees during the Holocaust, accept the humanitarian premises underlying asylum. Rather, the abolition is in the form of a new, apparently innocuous "procedural" requirement. The House Judiciary Committee recently adopted, as an …

Foreword: Federalism And Anti-Federalism As Civil Rights Tools, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

The focus on Civil Rights and the Supreme Court 1994 Term in this issue of the Howard Law Journal has one relatively consistent underlying theme-the role of federalist and anti-federalist arguments in the formulation of civil rights policy. As you might expect, there is not much dispute among the authors about the proper goals of civil rights law, for virtually every author in this issue is in one sense or another a traditionalist on policy... What separates the authors is their instrumentalist arguments; that is, how they would accomplish their goals...Some are traditional federalists, supporting the federal role for civil …

When Civil Rights Go Wrong: Agenda And Process In Civil Rights Reform, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

The aging of the persons leading the civil rights movement is only a metaphor for a more serious aging process that afflicts the movement. It is a sclerotic condition that has kept an old agenda and once-prodding - but now increasingly intolerant - ideas in place, a fixed way of thinking that has become more strident and resistant to change as it has become more complacent with itself. Once the opponent of conformity, some parts of the civil rights community now preach conformity within their communities. I see these not as indices of the venality of the civil rights movement, …

Introductory Remarks: Brown V. Board Of Education And Its Legacy: A Tribute To Justice Thurgood Marshall, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This issue of the Fordham Law Review presents Fordham Law School's tribute to one of the giants of American law and American history on the occasion of his retirement from the Supreme Court, Justice Thurgood Marshall. Because he decided to make the law his career and because of the way in which he pursued that career, the United States today is a remarkably different place than it was in 1933 when he began practice, and ours is a far more just society.

Justice Marshall made history repeatedly--as Chief Counsel of the NAACP Legal Defense Fund, as Judge of the United …

Thurgood Marshall: Courageous Advocate, Compassionate Judge, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall's life has spanned virtually the entire twentieth century, allowing him to witness its worst and its best. When he was born in 1908, segregation was legal and pervasive, and racial hatred extreme; in the year of his birth alone, eighty-nine black men were lynched. A grandson of slaves on both sides of his family, Marshall knew, from an early age, both the ugliness and the tenacity of racism. Determined to fight it, Marshall disregarded the difficulties and the dangers, and spent his life battling discrimination, earning the nickname "Mr. Civil Rights." His efforts, coupled with those of others …

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West

Georgetown Law Faculty Publications and Other Works

What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …

Racial Insults And Free Speech Within The University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This article examines the constitutionality of university prohibitions of public expression that insults members of the academic community by directing hatred or contempt toward them on account of their race. Several thoughtful scholars have examined generally whether the government can penalize citizens for racist slurs under the first amendment, but to the limited extent that they have discussed university disciplinary codes they have assumed that the state university is merely a government instrumentality subject to the same constitutional limitations as, for example, the legislature or the police. In contrast, I argue that the university has a fundamentally different relationship to …