Civil Rights and Discrimination Commons^™

The State Of The Union: Civil Rights, Paul G. Wolfteich

Vanderbilt Law Review

"The times," wrote Bob Dylan in 1963, "they are a-changin'." One hundred years after formal emancipation, blacks in 1963 were beginning to see the end of laws that prevented their full participation in American society. The United States Supreme Court had struck down the separate but equal doctrine, Congress had passed the first civil rights legislation in seventy-five years, and the executive branch was enforcing the law. Anthony Lewis wrote in the mid-1960s that "[n]o one could doubt that the conscience of America has been seized by the injustice of unequal treatment because of a man's skin." A women's liberation …

Race And Economic Opportunity, Robert L. Woodson

Vanderbilt Law Review

The true character of a nation can be judged in part by the way it treats its weakest or most vulnerable members. In the past decades, no-where has this test been more evident than in the quest for civil rights by black Americans. Civil rights has also become the leading indicator of the moral health of the Nation.

With the passage of civil rights laws, one-third of black Americans-those prepared by family status, education, or economic circumstance-walked through the doors of opportunity once they were opened. For unprepared blacks, removing racial barriers did not enable them to join the mainstream …

The Courts' Response To The Reagan Civil Rights Agenda, Drew S. Days, Iii

Vanderbilt Law Review

The Reagan Administration came to Washington, D.C. committed to reintroducing traditional theories of civil rights enforcement. The thesis of this Essay is that the Administration's efforts concerning the enforcement of civil rights were not successful. Of course, only time will tell whether civil rights jurisprudence will be altered because of forces set in motion by the Administration and changes in the makeup of the judiciary.Using the United States v. Carotene Products Co.' decision as the point of departure for a consideration of twentieth-century civil rights doctrine, it is apparent that the original goal of the Supreme Court's civil rights policy …

The Fair Housing Amendments Act Of 1988: The Second Generation Of Fair Housing, James A. Kushner

Vanderbilt Law Review

A generation has passed since the legislative victories of the 1960s extending civil rights protection: twenty-five years since the passage of the historic Civil Rights Act of 1964,1 twenty-four years since the passage of the Voting Rights Act, and twenty-one years since the passage of the Fair Housing Act of 1968. As we enter the second generation of civil rights enforcement under new Presidential leadership it is important to assess the state of civil rights, to examine the experience of first generation enforcement and the promises of the second generation.

The state of civil rights in the area of housing …

The Continuing Violation Theory And Systemic Discrimination: In Search Of A Judicial Standard For Timely Filing, Thelma A. Crivens

Vanderbilt Law Review

Title VII of the Civil Rights Act of 19641 is one of the most effective federal anti-discrimination statutes in employment discrimination law. Enforcement of this statute has eliminated discriminatory acts directed at individual victims as well as discriminatory policies and practices directed at groups that traditionally have been victims of discrimination. The effectiveness of Title VII in eliminating employment policies that restrict opportunities for a group or class of employees (referred to as systemic discrimination) has been particularly important because of the economic, psychological, and social consequences that this discrimination has on members of the group as a whole. Also, …

"Evans V. Jeff D." : Putting Private Attorneys General On Waiver, Randy M. Stedman

Vanderbilt Law Review

Prior to the Supreme Court's 1986 decision in Evans v. Jeff D.,fervent debate centered on the practice of simultaneously negotiating settlement on the merits and the award of attorney's fees in civil rights cases. Reasonable attorney's fees for prevailing plaintiffs in civil rights cases are provided at the discretion of the court under section 1988 of the Civil Rights Attorney's Fees Award Act of 1976' (the Fees Act).Sparked largely by the Third Circuit's rejection of the practice of simultaneous negotiations in Prandini v. National Tea Co., wide commentary on the practice soon followed the Fees Act's passage.

Critics of simultaneous …

Standards Of Proof In Section 274b Of The Immigration Reform And Control Act Of 1986, Carlos A. Gonzalez

Vanderbilt Law Review

On November 6, 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA), proclaiming it to be the most difficult legislative undertaking in the previous three Congresses. The Act's controversial centerpiece provides for sanctions against employers who knowingly hire, recruit, or refer for a fee undocumented aliens. While these sanctions were heralded as the most comprehensive reform in immigration law in over thirty years, opposition to them in Congress and among civil rights organizations was strong. These groups feared that employers seeking to avoid sanctions would discriminate in employment against Hispanics, Asians, and other ethnically or racially …

The Unique, Novel, And Unsound Adversary Ethic, Thomas L. Shaffer

Vanderbilt Law Review

The dominant ethic in the American legal profession in 1988 is the adversary ethic. The adversary ethic, in the words of the late Justice Abe Fortas, claims that "[l]awyers are agents, not principals; and they should neither criticize nor tolerate criticism based upon the character of the client whom they represent or the cause that they prosecute or defend. They cannot and should not accept responsibility for the client's practices." This ethic is the principal-and often the only-reference point in professional discussions. Although it is embedded in our professional codes, our cases, and our law offices, this Article argues that …

A Qualified Academic Freedom Privilege In Employment Litigation: Protecting Higher Education Or Shielding Discrimination?, Ayna J. Partain

Vanderbilt Law Review

Courts have long honored the fundamental principle that the right to full and fair litigation assumes the unobstructed availability of evidence.' When the divulgence of information in court threatens interests or relationships of sufficient social importance,however, courts have recognized a compelling justification for sacrificing the free flow of evidence and have created rules of privilege. Since 1972, when Congress extended Title VII of the Civil Rights Act of 19641 to academic institutions, colleges and universities increasingly have faced broad discovery requests for confidential personnel files by plaintiffs alleging that discriminatory factors such as sex, race, or age played an impermissible …

Civil Rights Attorney's Fees: Hensley's Path To Confusion, Tim K. Garrett

Vanderbilt Law Review

Congress enacted the Civil Rights Attorney's Fees Act (Fees Act)" to promote more vigorous enforcement of the civil rights laws by attracting competent legal counsel to represent civil rights plaintiffs. To achieve this goal the Fees Act allows courts to award attorney's fees to prevailing plaintiffs in civil rights cases.' The statute, however, entails an inherent tension: the Fees Act's primary aim of compensating prevailing plaintiffs' attorneys "'for all time reasonably expended on a matter' ,, conflicts with the desire to prevent windfalls to attorneys. This conflict is especially keen when a civil rights plaintiff only partially prevails," because the …

Quick Termination Of Insubstantial Civil Rights Claims: Qualified Immunity And Procedural Fairness, Edmund L. Carey, Jr.

Vanderbilt Law Review

The Harlow Court both altered the substantive law of qualified immunity and established a procedural goal for implementing the defense. This Note will focus primarily on the procedural aspects of the decision. In the three years that have elapsed since Harlow, lower courts have struggled to carry out the Supreme Court's directive to resolve the qualified immunity issue, if possible, on summary judgment. As a consequence, three distinct but First, what are the outer bounds of the ban on factual inquiry into an official's subjective state of mind? Second, which party, plaintiff or defendant, should bear the burden of proof …

The Bona Fide Occupational Qualification Exception--Clarifying The Meaning Of"Occupational Qualification", Jane W. May

Vanderbilt Law Review

The Age Discrimination in Employment Act (ADEA) prohibits employment decisions that discriminate against people aged forty to seventy because of their age. An exception to the ADEA permits otherwise unlawful age discrimination when age is a "bonafide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business.'' To invoke this exception successfully, an employer must produce evidence from which a court can conclude that age is a valid BFOQ. Currently,some confusion exists as to whether an employer's evidence must establish that age is relevant to the performance of the employee's specific duties or whether this evidence need …

Automatic And Indefinite Commitment Of Insanity Acquittees: A Procedural Straitjacket, John B. Scherling

Vanderbilt Law Review

This Recent Development suggests that the Court erroneously decided Jones. Part II examines the Supreme Court's constitutional analysis of commitment procedures and discusses postacquittal commitment in state and lower federal courts. Part III analyzes the Jones decision and the exception that it allows for the commitment of insanity acquittees. Part IV contends that prior to involuntary and indefinite commitment an insanity acquittee deserves the same standard of proof as a civil commitment candidate-proof of mental illness and dangerousness by clear and convincing evidence. Part IV also argues that absent proof by clear and convincing evidence of the acquittee's need for …

Book Review: Unlikely Heroes By Jack Bass, David B. Filvaroff

Vanderbilt Law Review

Unlikely Heroes is designed for both the lawyer and the general reader. It does not purport to offer careful legal analysis of constitutional doctrine or to measure the Fifth Circuit's actions during this era against any articulated concept of the proper role of the judiciary in a federal system. To the extent that Bass raises any questions about the propriety of the judges' conduct or decisions, he appears to conclude that they were fully justified by the nature of the issues presented and by the demands of the times.Whatever its intended audience, however, the book would have benefited from a …

Burdens Of Pleading And Proof In Discrimination Cases: Toward A Theory Of Procedural Justice, Robert Belton

Vanderbilt Law Review

If the national policy of eliminating discrimination is to be achieved, the courts--to whom the major responsibility for effectuating this goal is delegated--must establish a coherent framework for allocating the burdens of pleading and proof that provides "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."' The purpose of this Article, therefore, is to propose such a coherent approach to the allocation of the burdens of pleading and proof in discrimination cases. Towards this end, part II of the Article examines the definitional and operational effect of …

Congress, The Courts, And Sex-Based Employment Discrimination In Higher Education: A Tale Of Two Titles, Joel W. Friedman

Vanderbilt Law Review

This Article will examine the manner in which the federal courts have handled sex-based employment discrimination claims against colleges and universities. Specifically, the Article will suggest that most such judicial opinions have construed and applied the applicable federal laws in a manner inconsistent with Congress' articulated desire to promote equal employment opportunity in, and to remove the taint of sex-biased decisionmaking from, the academic profession. In light of this judicial misconstruction of the remedial statutes, the Article proposes a different framework for analyzing Title VII and Title IX claims that will more adequately promote Congress' twin objectives.

Implied Private Remedies Under Federal Statutes: Neither A Death Knell Nor A Moratorium--Civil Rights, Securities Regulation, And Beyond, Thomas L. Hazen

Vanderbilt Law Review

The part of this Article that follows contains an examination of the implication process as it has developed in the federal courts.As will be seen, the Supreme Court has gone through a cyclical pattern of expansion and contraction in implying remedies with respect to a wide range of substantive areas. Accordingly, it is not possible to glean a single unified theory from the sixty-five years of Supreme Court activity. There are, however, a number of recurring themes, and it is possible to view all of the diverse approaches as part of a loosely defined pattern that was formulated into a …

Doing Good The Wrong Way: The Case For Delimiting Presidential Power Under Executive Order No. 11,246, Andrie K. Blumstein

Vanderbilt Law Review

The Note has demonstrated that the concept of affirmative action as embodied in the Executive Order Program induces race-conscious employment programs by federal contractors in contrast to the norm of race-neutral decision making imposed by the Civil Rights Act of 1964. The Note has also argued that a nexus analysis must define the parameters of executive authority to promulgate the Executive Order Program. In other words, there must be a close relationship between the alleged source of executive authority and the President's actual exercise of that authority...

This Note attempts to refine the Presidential power analysis of Youngstown Steel and …

Let Them Be Judged: The Judicial Integration Of The Deep South / Federal Taxation Of Trusts, Grantors And Beneficiaries/, Steven F. Lawson, John H. Martin

Vanderbilt Law Review

Let Them be Judged: The Judicial Integration of the Deep South Frank T. Read and Lucy S. McGough

The manner in which federal judges in the South both retarded and promoted first-class citizenship rights for Black Americans is the topic of Frank Read's and Lucy McGough's 1978 work Let Them Be Judged: The Judicial Integration of the Deep South. The authors, law professors at the University of Tulsa and Emory University respectively, review in great detail the operation of the United States Court of Appeals for the Fifth Circuit in adjudicating the rapidly increasing volume of civil rights litigation after …

Judicial Restrictions On Attorneys' Speech Concerning Pending Litigation: Reconciling The Rights To Fair Trial And Freedom Of Speech, Sally R. Weaver

Vanderbilt Law Review

The constitutionality of restraints on attorneys' speech has been considered by only two federal circuit courts: the Seventh Circuit, in Chicago Council of Lawyers v. Bauer,' and, more recently, the Fourth Circuit, in Hirschkop v. Snead.' Relying on many of the same precedents, the circuits nevertheless developed seemingly contrary standards. This Recent Development compares the analyses of these recent cases and suggests an appropriate standard for the accommodation of the conflicting rights of free speech and a fair trial.

There Is A Fountain: The Autobiography Of A Civil Rights Lawyer / Legal Regulation Of The Competitive Process, Leonard B. Boudin, Kenneth B. Germain

Vanderbilt Law Review

There is a Fountain: The Autobiography of a Civil Rights Lawyer Reviewed by Leonard B. Boudin --

This book is unlike other good legal autobiographies, such as those of D.N. Pritt,' Clarence Darrow, and more recently Charles Morgan," for Lynn throughout his life was very poor, a radical and,most importantly, Black. Those portions of his autobiography that recount his political life in college and in later years make exciting and important reading. Lynn was the only member of the Young Communist League at Syracuse University in the early 1930s, and was a member of the American Communist Party in his …

The Use Of Racial Preferences In Employment: The Affirmative Action/Reverse Discrimination Dilemma, Judith M. Janssen

Vanderbilt Law Review

This Note examines the constitutional and statutory background of the affirmative action/reverse discrimination issue and analyzes judicial decisions confronting the dilemma." The Note then explores grounds on which the Supreme Court might permit voluntary affirmative action using quotas. Existing EEOC guidelines and Executive' Order 11,246 offer both an objective basis on which to develop a voluntary program and a safeguard against misuse of affirmative action." When the program is established in a collective bargaining agreement, moreover, the national policy of allowing free play for the bargaining process to establish terms and conditions of employment gives an additional reason for allowing …

The Old Order Changeth, Theodore A. Smedley

Vanderbilt Law Review

The publication of this Symposium in 1978 marks the tenth anniversary of the final publication of the Race Relations Law Reporter. The timing of the Symposium is particularly appropriate for another reason as well. In 1968, the National Advisory Commission on Civil Disorder, commonly known as the Kerner Commission,issued a report that had been requested by President Lyndon B.Johnson in July 1967. The Commission, which was to investigate the underlying causes of the riots that plagued America's larger cities during the 1960's, offered the pessimistic conclusion that "Our Nation is moving toward two societies, one black, one white-separate and unequal." …

Administrative Coordination In Civil Rights Enforcement: A Regional Approach, Charles M. Lamb

Vanderbilt Law Review

The failure of traditional coordinative efforts among federal agencies suggests that new and different approaches are imperative. This Article has emphasized a regional approach for solving these problems. Experience has shown that even well-intentioned and capable administrators in Washington cannot alone ensure compliance with the federal civil rights laws. They must have the full support of key regional officials of the federal government, and they must have a certain degree of cooperation from state and local officials. One means of gaining this support and assistance is through the Councils, which bring together in one forum high-level federal, state, and local …

Theodore A. Smedley And The Race Relations Law Reporter, Paul H. Sanders

Vanderbilt Law Review

Beginning in 1959, Ted Smedley served with personal distinction and national recognition as Director of the Race Relations Law Reporter and as Director and Editor of the successor publications,the Race Relations Law Survey and the Race Relations Law Index. Professor Smedley, who joined the Board of Editors of the Race Relations Law Reporter in the fall of 1957 as one of three Associate Directors, engaged in editorial activities in this dynamic and sensitive area over a seventeen-year period, an era marked by tremendous ferment and revolutionary change. The quality of his work is evident in the words published within the …

Simple Justice In The Cradle Of Liberty: Desegregating The Boston Public Schools, Ronald R. Edmonds

Vanderbilt Law Review

This Article provides a summary view of the desegregation of the Boston public schools. Some aspects of teaching and learning in the Boston schools clearly have improved as a direct consequence of Boston's desegregation, while others seem little affected. Teaching and learning are mentioned at the outset because later discussion will establish that black Bostonians seek desegregation as part of their larger and more general quest for improved schooling for their children.' The success or failure of desegregation therefore may fairly be judged partly on the basis of its effect upon the quality of schooling made available to black children. …

A Comparative Review Of Public And Private Enforcement Of Title Vii Of The Civil Rights Act Of 1964, Robert Belton

Vanderbilt Law Review

The efforts of the EEOC, the Department of Justice, and other federal and state agencies during the first decade of enforcement have been the subject of a great deal of commentary and review. Much of this commentary has been critical. Private enforcement of Title VII has produced the major legal developments, but these efforts have received little attention in the literature. This Article therefore will present a comparative review of governmental and private enforcement efforts under Title VII. A brief overview of the historical efforts to eliminate employment discrimination prior to Title VII is necessary to place private enforcement efforts …

Civil Rights And Race Relations, Kevin J. Wolff

Vanderbilt Law Review

This Symposium honors both Professor Theodore A. Smedley and the publication he served as director, the Race Relations Law Reporter. As Professor Smedley's own introductory remarks point out, the publication of this Symposium in 1978 is particularly appropriate. First, it marks the tenth anniversary of the final issue of the Reporter, a journal whose importance and usefulness to the civil rights field is well known to all who have been active in the area. In publishing this Symposium, Vanderbilt Law School continues an important tradition in which Professor Smedley has played a major role.

The Expansion Of Federal Jurisdiction And The Crisis In The Courts, Harry Phillips

Vanderbilt Law Review

Diversity jurisdiction has undergone intensive scrutiny and criticism for many years, with some commentators advocating repeal, and others urging retention. Among the critics of diversity jurisdiction are some of the legal profession's most prominent members. Roscoe Pound, Louis D. Brandeis, and Charles William Eliot were members of a committee that questioned diversity jurisdiction as long ago as 1914, and Senator George W. Norris of Nebraska led the Senate Judiciary Committee in recommending repeal of diversity jurisdiction in 1928. In 1954, Associate Justice Felix Frankfurter, an ardent foe of diversity jurisdiction, referred to "the mounting mischief inflicted on the federal judicial …

Title Vii - Seniority - The Relevant Scope Of Inquiry For Determining The Legality Of A Seniority System, James D. Spratt, Jr.

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, which became effective on July 2, 1965, was enacted to eliminate artificial barriers to employment that historically have deprived minorities and women of employment opportunities. Section 703 of the Act thus makes discrimination on the basis of race, color, religion, sex, or national origin an unlawful employment practice. In order to obtain relief from a discriminatory employment practice, an aggrieved party must demonstrate that the defendant intentionally engaged in the unlawful practice. Because the broad language of sections 703(a), 703(c), and 706(g) fails to define the terms "discriminate" and"intentionally," the effectiveness …