Civil Rights and Discrimination Commons^™

Qualified Immunity & Subjective Knowledge, John F. Preis

Law Faculty Publications

There is something weird going on within the doctrine of qualified immunity. The Supreme Court and lower courts routinely claim that officers who “knowingly violate the law” are not entitled to qualified immunity, but then—in almost the same breath—assert that an officer’s knowledge of the law is irrelevant to the qualified immunity analysis. What is even more strange is that these two opposing views can apparently be traced to the foundational case in the field: Harlow v. Fitzgerald.

This Article explores and proposes a resolution to this apparent contradiction. Beginning with Harlow itself, the Article explores the case using the …

Social Murder And The Antisocial Contract, Marissa Jackson Sow

Law Faculty Publications

Social murder is widely understood as the reckless and calculated killing by the State of people who are considered surplus and thus made redundant by the State. It is not merely an outcome, however; social murder, is an antidemocratic process, and—certainly as it is manifesting in the United States under the second Trump Administration—is also an anti-constitutionalist project aimed at destroying society, eliminating social goods, and renegotiating an American social contract that is, definitionally, antisocial. Social murder is as much about the elimination of social life as it is about the interruption of physical life. And it is fueled by …

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

Interrogating Miranda's Custody Requirement, Lauren E. Clatch

Law Faculty Publications

Interrogating officers need only issue Miranda warnings in “custodial” settings, and a significant degree of psychological coercion makes a setting custodial. This Article asks a question at the heart of Miranda caselaw: Have courts applied Miranda’s custody trigger consistent with people’s real experiences of police questioning? If not, courts are allowing, and justifying, the admission of unwarned self-incriminating statements by deeming those interrogations “noncustodial” even when there is a significant element of compulsion. To compare courts’ custody decisions to civilians’ perceptions of coercion in interrogations, I surveyed laypeople across two studies using forty interrogation scenarios from jurisdictionally diverse cases spanning …

No Knock? No Case: Prosecutorial Deterrence As A Countermeasure To No-Knock Warrants, Tamika Griffin Moses

Law Faculty Publications

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy …

A Civil Rights Defense Of Gentrification, Carol Brown

Law Faculty Publications

Scholars across disciplines such as sociology, economics, and urban planning are writing about gentrification. The literature and beliefs surrounding gentrification are very diverse, but what often connects the various views is a negative perception that gentrification always disadvantages and displaces low-income minority residents, physically or culturally. But the connotations of race and class associated with gentrification in the minds of many do not align with the empirical research and scholarly findings. Thus far in law, there is no thick legal account of gentrification and its legal or policy implications. Much of the legal writing is predicated upon an inaccurate conception …

Investigating Appraisal Discrimination, Carol Brown

Law Faculty Publications

Over the past five years, the question of whether real estate appraisers systematically undervalue homes purchased or occupied by Black and Hispanic households has emerged as a significant civil rights issue. Major media have highlighted some instances where the same home received a dramatically higher appraisal when the appraiser believed the client was white rather than Black. Some social scientists have argued that appraisal discrimination is the root cause of the lower housing prices that prevail in many urban minority neighborhoods— and thus an important source of the racial “wealth gap.” Candidate Biden expressed strong concern about the issue during …

Whiteness As Contract In The Racial Superstate, Marissa Jackson Sow

Law Faculty Publications

Despite the United Nations’ (UN) ongoing commemoration of the International Decade for People of African Descent and direct calls from UN member states for the body to confront systemic racism in the United States, the United States has with the support of its allies—successfully blocked measures beyond those which gently encourage mere aspiration to racial equity. Moreover, notwithstanding formal guarantees of equal access to justice and accountability for human rights violations, people of African descent and majority Black member states are systematically constructed out of international policymaking authority and legal protections at the UN—leaving them vulnerable to aggression, exploitation, and …

Enhancing Rural Representation Through Electoral System Diversity, Henry L. Chambers Jr.

Law Faculty Publications

Rural Virginians face disparities in outcomes regarding healthcare, access to important infrastructure, and other services. Some disparities may be related to rurality. The sparseness of population in rural areas may limit the sites where people may access services, triggering the need to travel significant distances to obtain goods and services in such areas. Limited access may lead to disparities even when the quality of goods and services in rural areas is high. The disparities affect all rural Virginians, but disproportionately affect rural Virginians of color. The causes of the disparities are complex and myriad, and may be based on race, …

Fighting For Whiteness In Ukraine, Marissa Jackson Sow

Law Faculty Publications

Teri McMurtry-Chubb’s Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy offers groundbreaking insights into the gendered economic hierarchies internal to the body politic of whiteness through its examination of the limitations that plantation overseers’ contracts in the American Deep South placed on their ability to exercise the proprietorship and contracting authority prerequisite to white identity. This Essay uses the Ukrainian campaign to be recognized as a liberal white nation, and formally become a member of the West, as a contemporary case study of how whiteness remains hegemonized and subject to the ability …

Ukrainian Refugees, Race, And International Law's Choice Between Order And Justice, Marissa Jackson Sow

Law Faculty Publications

The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Protect And Serve, Marissa Jackson Sow

Law Faculty Publications

There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses …

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Law Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the white liberal elite.

Whiteness As Contract, Marissa Jackson Sow

Law Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily  apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Social Services And Mutual Aid In Times Of Covid-19 And Beyond: A Brief Critique, Dana Neacsu

Law Faculty Publications

May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association …

Entrenched Racial Hierarchy: Educational Inequality From The Cradle To The Lsat, Kevin Woodson

Law Faculty Publications

For my contribution to this special issue of the Minnesota Law Review, I will attempt to situate the problem of black underrepresentation at America’s law schools within the broader context of racial hierarchy in American society. The former has generated an extensive body of legal scholarship and commentary, centering primarily on the racial impact of law schools’ admissions criteria and procedures, particularly the substantial weight placed upon the Law School Admissions Test (“LSAT”). This focus is understandable: given the substantial racial disparities in LSAT performance and the test’s relatively limited value in predicting academic and professional outcomes, it makes sense …

Bostock, The Crown Acts, And A Possible Right To Self-Expression In The Workplace, Henry L. Chambers, Jr.

Law Faculty Publications

Employment at-will is the default rule in American law. In the absence of an employment contract, employers are generally free to discharge workers for any reason not barred by statute or public policy. Typically, an employee can be fired when an employer dislikes an employee's self-expression that is not specifically protected by law. However, recent developments in employment discrimination law may provide the foundation for a burgeoning right to self-expression in the workplace. In its recent case Bostock v. Clayton County, the Supreme Court ruled sexual orientation discrimination and transgender discrimination necessarily involve sex discrimination under Title VII. The Court's …

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Law Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale—and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily suspended …

The Ripple Effects Of Gideon: Recognizing The Human Right To Counsel In Civil Adversarial Proceedings, Jonathan K. Stubbs

Law Faculty Publications

Procedural fairness and equal protection were the core of Gideon’s reasoning for a right to counsel for indigent criminal defendants. Under the same constitutional values, there should be a right to legal assistance of counsel for indigent civil litigants, especially in adversarial proceedings. This Article outlines the constitutional basis for a civil right to counsel. Further, it stresses the need for legislation to address the massive shortfall in legal representation available to indigent persons in the United States. Recognition of civil Gideon as part of the Constitution’s promise of justice accommodates a moral revolution. It exemplifies a shift in …

Pardon Me Please: Cyntoia Brown And The Justice System’S Contempt For The Rights Of Black People, Danielle Wingfield-Smith

Law Faculty Publications

"The outcry that precipitated Cyntoia Brown’s pending release on August 7, 2019 is a resonating reverberation of the voices of counter-resistance, which continue to echo in the halls of American injustice. From the social media platforms for social justice to the chambers of the Supreme Court, the pleas for pardon are nothing new. Pardon me for driving, pardon me for walking home from the store, pardon me for walking in the street with friends, pardon me for playing with toys—all while Black. While you’re at it, excuse me for wanting the right to equal education. As a matter of fact, …

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …

Following Finality: Why Capital Punishment Is Collapsing Under Its Own Weight, Corinna Barrett Lain

Law Faculty Publications

Death is different, the adage goes - different in its severity and different in its finality. Death, in its finality, is more than just a punishment. Death is the end of our existence as we know it. It is final in an existential way.

Because death is final in an existential way, the Supreme Court has held that special care is due when the penalty is imposed. We need to get it right. My claim in this chapter is that the constitutional regulation designed to implement that care has led to a series of cascading effects that threaten the …

Clemency And The Administration Of Hope, Erin R. Collins

Law Faculty Publications

In 2014, President Obama announced his intention to ‘‘restor[e] fundamental ideals of justice and fairness’’ to the criminal justice system by exercising his executive clemency power to commute sentences of those who had ‘‘already served their time and paid their debt to society.’’ Soon thereafter, the Department of Justice (DOJ) specified six criteria it would use to prioritize applications. The primary targets of these criteria were the casualties of the war on drugs: people sentenced to draconian sentences for nonviolent drug offenses, some of which involved less than a handful of narcotics. Most of these individuals had exhausted any available …

It’S Time For The Fourth Circuit To Rethink Deshaney, Dale Margolin Cecka

Law Faculty Publications

In 2015, the Fourth Circuit heard Doe v. Rosa, in which the parent plaintiffs sought to extend civil liability to the Citadel’s president, for failing to protect their minor sons from sex abuse inflicted by one of the Citadel’s employees. In dismissing the matter, the Fourth Circuit followed precedent set by the Supreme Court years ago in Deshaney. This interpretation of Deshaney, however, is no longer valid in light of the growing number of sexual misconduct cases involving educational institutions. Strictly applying Deshaney encourages schools to place their interests higher than the security of their students. In …

America Is Slowly Awakening To The Structural Unfairness In Our Criminal Justice System, Mary Kelly Tate

Law Faculty Publications

Review of Bryan Stevenson's book, Just Mercy: A Story of Justice and Redemption, published by Spiegal & Grau in 2014.

Why Insurance Contracts Might Be The Trick To Police Reform, John F. Preis

Law Faculty Publications

How do lawsuits deter misconduct? That is an issue that Professor Joanna Schwartz has written about before, and her latest article on the topic, How Governments Pay: Lawsuits, Budgets and Police Reform, could not be more timely. Over the past year, our county has witnessed dramatic instances of police abuse and the public is understandably demanding reform. Schwartz’s terrific article explains why civil rights actions may fail to instigate reform, and suggests how insurance contracts, of all things, can play a role in fixing this problem.

Diversity Without Integration, Kevin Woodson

Law Faculty Publications

The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter — the requirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter’s vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains …

Derivative Racial Discrimination, Kevin Woodson

Law Faculty Publications

This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …

Human Capital Discrimination, Law Firm Inequality, And The Limits Of Title Vii, Kevin Woodson

Law Faculty Publications

This Article advances the legal scholarship on workplace inequality through use of evidence derived from interviews of a sample of black attorneys who have worked in large, predominantly white law firms. It does so by calling attention to the manner in which these firms operate as sites of human capital discrimination — patterns of mistreatment that deprive many black associates of access to the substantive work opportunities crucial to their professional development and career advancement. This Article identifies the specific arrangements and practices within these firms that facilitate human capital discrimination and describes the varied, often subtle harms and burdens …