Civil Rights and Discrimination Commons^™

Daniel Ezra Subotnik (1942-2024) Obituary

Touro Law Review

No abstract provided.

Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik

Touro Law Review

This essay may shock many readers. What it tries to do is look more closely than usual at the underpinnings of American racial discourse in the hope of leaving its readers, by its end, more willing than before to speak openly and listen carefully to people who disagree with them on the fraught subject of race. Wouldn’t many of us academics like to engage in a more open-minded sort of interracial conversation with a greater variety of our peers than we usually do? And yet it never seems to happen. Do any of us, black or white, feel we can …

Eulogy For Daniel Subotnik דניאל עזרא בן אליעזר ואהובה Died–March 8 / 29 Adar 1, 57, Rabbi Wayne Franklin

Touro Law Review

No abstract provided.

Dan Subotnik Kept It Real, John Mcwhorter

Touro Law Review

No abstract provided.

Son Of Orwell, Chesterton, And Mill, Stephen B. Presser

Touro Law Review

No abstract provided.

In Memory Of Dan Subotnik—Friend And Scholar, David M. Phillips

Touro Law Review

No abstract provided.

Dan Subotnik—Three Encounters And One Strong Memory, Honorable Robert S. French

Touro Law Review

No abstract provided.

Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer

Touro Law Review

While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the …

Private Religious Schools And Disability Discrimination, Kevin Timpe

Touro Law Review

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

America’S Turning Point: Religious & Free Speech Rights Transcend The Authority Public School Districts Think They Possess, Robert L. Coleman

Touro Law Review

What is the first thing that comes to mind when thinking about the First Amendment? I would argue that most people either say “Religion” or “Free Speech.” Arguably two of the most important and humane values inherent in a functioning democratic society are safeguarded by the First Amendment. But are they? Imagine this situation. You and your spouse have a child and send him to the local public school. One day, he comes home and says that his fourth grade teacher instructed the class that each student must refer to classmates by the pronouns of that student’s choice. Your child …

Evaluating Competitive Equality: The Department Of Education’S Regulations And Impact On Title Ix In Women’S Sports, Lola-Marie Pyros

Touro Law Review

Title IX was enacted to guarantee women equal opportunities in athletics by preserving competitive fairness. That objective has been challenged by evolving policies on transgender participation in women’s sports. Proponents of inclusion frame the issue as a matter of civil rights, while opponents emphasize physiological differences between the sexes that remain even after medical transition. Shifting interpretations by the Department of Education, influenced by changes in presidential administrations, have created legal uncertainty, culminating in Tennessee v. Cardona, which rejected an expansive definition of “sex” to include gender identity. This Note argues that maintaining the integrity of women’s athletics requires recognition …

Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman

Touro Law Review

At a moment when antisemitism is on the rise in the United States, we believe it is useful to consider how the American Revolution led to the first nation in the world where antisemitism was fundamentally contrary to the national constitution and Jews were entitled to full rights as citizens of the national government. As we explain in this article, during and after the Revolution, Jews were free to participate in all professions and general civic life, naturalize (if immigrants), vote, serve on juries, become lawyers and judges, become military officers, and attend universities. Jews had almost none of these …

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

Medical Taking Of Human Biological Material V. Traditional “Art Looting”: Henrietta Lacks And The Complex Ethical And Legal Liability Questions Raised By Her Unfortunate Case, Alyaa Chace

Touro Law Review

During a poignant saga of American history, Henrietta Lacks stands as an emblem of both scientific triumph and ethical controversy. In 1951, Mrs. Lacks, a tobacco farmer and mother of five, visited Johns Hopkins Hospital for treatment of what was later discovered to be advanced stage cervical cancer. Her doctors treated her with radium, which was standard practice at the time. However, Mrs. Lacks’s cancer rapidly metastasized and she ultimately passed away just months later on October 4, 1951, at the age of 31. During the course of her treatment, Mrs. Lacks’s cells were non-consensually removed for purposes of scientific …

Mental Hygiene Law Article 81 Proceedings In New York State And The Associated Deprivation Of One’S Civil Rights And Autonomy: Are We Really Helping?, Giulia R. Marino

Touro Law Review

New York State Mental Hygiene Law Article 81 affords a population that is vulnerable to abuse and exploitation an opportunity to have their personal and/or property management needs met by the least restrictive means available, often entailing a severe deprivation of their rights.1 But what is meant by the term “least restrictive means available,” how is this determined, and how are these “means” implemented and monitored? Is this deprivation of an individual’s rights the only way they can be helped, or is this unnecessarily harmful? Are there other ways to protect the vulnerable in our society without taking away these …

The Legacy Of Brown V. Board Of Education: Achieving Student Body Diversity In All Levels Of Education, Nancy L. Zisk

Touro Law Review

This Article addresses the legal standard by which school admissions programs may be judged and validated as school districts struggle to achieve student body diversity. As the Supreme Court recognized in its seminal decision, Brown v. Board of Education, education “is the very foundation of good citizenship.” Twenty years after that case was decided, Thurgood Marshall, who had argued that separate was not equal in the Brown case, observed as a Justice of the Court that “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Because achieving student body …

Confidentiality, Warning And Aids: A Proposal To Protect Patients, Third Parties And Physicians

Touro Law Review

No abstract provided.

20 Ways To Fight Housing Discrimination, Ian Wilder

Touro Law Review

When looking at the continuing size of the problem of discrimination it is easy to be paralyzed into inaction by the sweeping scope of the undertaking. A good remedy is to find actions that an individual can take to move toward justice. Though Dr. King is often quoted as stating that “the arc of the moral universe is long, but it bends toward justice,” that bend in the arc is caused by legions of activists pulling the future toward justice. Robert Kennedy noted in his opposition to apartheid in South Africa that “a million different centers of energy and daring …

Aging, Health, Equity, And The Law: Foreword, Joan C. Foley

Touro Law Review

No abstract provided.

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

Balancing Clashing Scholars’ Academic Freedoms, Sharona Aharoni-Goldenberg, Gerry Leisman

Touro Law Review

The paper analyzes the scope of scholars’ academic freedom and maintains that it is composed of two pillars. First, inclusion, which is subject to capacity, equality, and the provision of a pro-educational academic environment. Second, academic expression, which refers to teaching and research, freedom of opinion, political participation outside academia and freedom to receive academic materials. Scholars’ academic freedom is limited by professional standards and is subject to the respect of the rights of fellow scholars.

The paper argues that scholars’ academic freedom is not confined to a scholar-state relation but is also relevant to scholar-scholar relations. Hence, scholars’ academic …

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

Improper Distinction Under The Ada Leads To An Irrational Outcome: Favoring One Life Over Another, Daniel Frederick Parise

Touro Law Review

Society has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.

Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes …

Modification Requests In Community Associations: Do We Know What’S Reasonable?, Beth M. Gazes

Touro Law Review

The Fair Housing Act (“FHA”) as well as the New York State Human Rights Law (“HRL”) provide, inter alia, that qualifying individuals shall be granted reasonable modifications or accommodations to afford such individuals either full enjoyment of the premises or an equal opportunity to enjoy their dwelling, respectively. Both laws likely extend to common areas of the development but arrive at this protection in different ways. Namely, through the FHA’s implementing rules (“Rules”) and with guidance from the Department of Housing and Urban Development (“HUD”), courts have easily interpreted the FHA to extend to common areas but stop short …

Denial Of Housing To African Americans: Post-Slavery Reflections From A Civil Rights Advocate, Elaine Gross

Touro Law Review

In this article, I draw on two decades of experience as a civil rights advocate to reflect on the denial of housing to African Americans in post-slavery America. I do so as Founder and President of the civil rights organization, ERASE Racism. I undertake historical research and share insights from my own experience to create and reflect upon six lessons related to understanding the systematic discrimination and segregation of African Americans. The lessons encompass: (1) the role of the federal government, (2) the role of municipal governments, (3) White supremacy ideation and actions, (4) legislative advocacy and legal actions, (5) …

Recent Case Law, Disparate Impact, And Restrictive Zoning, Michael Lewyn

Touro Law Review

The Fair Housing Act (“FHA”) prohibits housing discrimination, including the refusal to sell or rent housing based on race, color, religion, sex, familial status or national origin,and any policy or conduct that “otherwise make[s] unavailable or den[ies], a dwelling [based on these impermissible factors].”In 2015, the Supreme Court interpreted the “otherwise make unavailable” language of the Act to mean that the FHA includes not only claims for intentional discrimination, but also claims for disparate impact. Under the disparate impact doctrine, a defendant may be liable for facially neutral rules or policies that disproportionately favor one racial group over another.

Zoning …