Civil Rights and Discrimination Commons^™

Protecting Basic Rights Of Citizens, Ellen Catsman Freidin, Ann C. Mcginley

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Revision 9 suggests three important changes to the basic rights provision of the Florida Constitution. First, it would add “female and male alike” to define “natural persons who are equal before the law.” This change expressly recognizes equality of the sexes. Second, it would prohibit the government from depriving a person of any right because of the person’s national origin. Finally, the revision prohibits the government from depriving a person of any right because of “physical disability,” replacing the currently existing protection for “physical handicap.”

Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley

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The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …

Disability, Deference, And The Integrity Of The Academic Enterprise, Anne Proffitt Dupre

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Congress has established a complex set of laws regarding the education of disabled students. This Article discusses the obligations the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act impose on schools and focuses on how courts interpreting these statutes address the decisions of educators regarding how best to educate disabled students. Professor Dupre brings to light a striking contrast between how courts regard the decisions of educators in higher education as opposed to the decisions of educators in primary and secondary schools, routinely according the former considerable deference while often …

Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White

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This Article explores the concept of discrimination under the NLRA [National Labor Relations Act]. Specifically, it examines discrimination under the statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas. First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination …

The Origins Of The Code Noir Revisited, Alan Watson

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In a recent article, The Origins and Authors of the Code Noir, my friend Vernon Palmer graciously and courteously took me to task for claiming that the law in the Code Noir was not made "on the spot" in the Antilles, but in Paris. He also said of me and of Hans Baade, "neither author appears to have investigated the actual circumstances of the Code's redaction." I can speak only for myself, and I confess with shame that Professor Palmer is quite correct. I did not investigate the actual circumstances of the redaction of the Code Noir. And I should …

Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman

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No abstract provided.

The Emerging Cronyism Defense And Affirmative Action: A Critical Perspective On The Distinction Between Colorblind And Race-Conscious Decision Making Under Title Vii, Ann C. Mcginley

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In Foster v. Dalton, the United States Supreme Court approved of the promotion of a less-qualified white male over a better-qualified black female under very suspicious circumstances; in Taxman v. Board of Education, the court invalidated the retention of an equally qualified black female over her white counterpart. The law justifies the disparate results in Foster and Taxman by invoking the principle of race and gender “neutrality” in the decision making process. Under this principle, the law generally prohibits employment determinations based consciously on a person's race or gender. An exception to the “neutrality principle” of Title VII is the …

Rights Of Slaves And Other Owned-Animals, Alan Watson

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Part of a number of essays which follow are written by experts from various interdisciplinary fields at the request of Animal Law.

I chose the title with deliberation. My concern in this paper is not with moral theory, but with the law that has given rights to owned-animals, and the extent to which these rights have been enforced.

I believe that there is a three-fold hierarchy as to the extent of these rights in accordance with the animal that is their object. At the top of the hierarchy are rights accorded to slaves under a legal system that is not …

Admissibility Of Investigatory Reports In § 1983 Civil Rights Actions - A User's Manual, Martin A. Schwartz

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No abstract provided.

Rethinking Religion And Public School Education, Marjorie A. Silver

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No abstract provided.

Destructuring Disability: Rationing Of Health Care And Unfair Discrimination Against The Sick, David Orentlicher

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No abstract provided.

Rethinking Civil Rights And Employment At Will: Toward A Coherent National Discharge Policy, Ann C. Mcginley

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America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through …

Whose Justice? Which Victims?, Lynne Henderson

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No abstract provided.

Vindicating Rights In A Federal System: Rediscovering 42 U.S.C. § 1985(3)'S Equality Right, John Valery White

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Section 1985(3) is dead. The United States Supreme Court's refusal to apply § 1985(3) to the assault and intimidation of abortion seekers by abortion protesters in Bray v. Alexandria Women's Health Clinic confirmed the demise of the section, already significantly undercut by the Supreme Court's previous decisions in Great American Federal Savings & Loan Ass'n v. Novotny and United Brotherhood of Carpenters & Joiners v. Scott. If Bray is troubling for the conceptual moves Justice Scalia employed to deny recovery under the section, it is more disconcerting for the apparently inconsequential resemblance of its facts to those of the case …

Because I Am Black, Because I Am Woman: Remedying The Sexual Harassment Experience Of Black Women, Andrea L. Dennis

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This Note examines the intersection of race and gender in the context of sexual harassment jurisprudence. Since the arrival in this country of the first female African slaves, Black women have experienced sexual harassment on the job. This Note discusses the failure of sexual harassment theory to acknowledge the unique sexual harassment experience of Black women. From the very earliest discussions of sexual harassment, the impact of the race of the victim on the experience and resulting legal claim was ignored. Feminist legal theorists, leaders in issues affecting women, have been slow to acknowledge and integrate the role of race …

Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White

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This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. …

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman

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No abstract provided.

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, …

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

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No abstract provided.

How Radical Is Lani Guinier?, Michael Lewyn

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No abstract provided.

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

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Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

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No abstract provided.

Ethics, The Legacy Of The Reverend Doctor Martin Luther King, Jr., And The Movement Toward Environmental Justice, Beverly Mcqueary Smith

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No abstract provided.

Introduction (Symposium On Municipal Liability), Patricia E. Salkin

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No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

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In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Reinventing Reality: The Impermissible Intrusion Of After-Acquired Evidence In Title Vii Litigation, Ann C. Mcginley

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This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights …

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

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With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

Affirmative Action, Douglas D. Scherer

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No abstract provided.