Civil Rights and Discrimination Commons^™

In Aid Of Removal: Due Process Limits On Immigration Detention, David Cole

Georgetown Law Faculty Publications and Other Works

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it …

Postsecondary School Education Benefits For Undocumented Immigrants: Promises And Pitfalls, Victor C. Romero

Faculty Scholarship

Should longtime undocumented immigrants have the same opportunity as lawful permanent residents and U.S. citizens to attend state colleges and universities? There are two typical justifications for denying them such opportunities. First, treating undocumented immigrants as in-state residents discriminates against U.S. citizen nonresidents of the state. Second, and more broadly, undocumented immigration should be discouraged as a policy matter, and therefore allowing undocumented immigrant children equal opportunities as legal residents condones and perhaps encourages "illegal" immigration. This essay responds to these two concerns by surveying state and federal solutions to this issue.

The Selective Deportation Of Same-Gender Partners: In Search Of The "Rara Avis", Victor C. Romero

Faculty Scholarship

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate …

Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker

Michigan Journal of Race and Law

This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how …

In Vindication Of Justiciable Victims' Rights To Truth And Justice For State-Sponsored Crimes, Raquel Aldana-Pindell

Vanderbilt Journal of Transnational Law

In this Article, Professor Aldana-Pindell explores the norms establishing a state's responsibility to grant victims of human rights violations adequate rights in the criminal prosecution process as a remedy for their victimization. She argues that victim-focused prosecution norms comport and provide more effective means of promoting respect for human rights, in certain nations in democratic transition from mass atrocities. Moreover, she suggests that, as part of other justice reforms, states plagued with impunity should adopt criminal procedures granting surviving human rights victims greater standing in the prosecution process. Professor Aldana-Pindell then uses Guatemala to examine the factors that compel the …

Not As Simple As Learning The Abc's: A Comment On Owasso Independent School District No. I-Ol1 V. Falvo And The State Of The Family Educational Rights And Privacy Act, Randi M. Rothberg

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's rulings in Falvo and Owasso, which determined that peer grading practices do not violate FERPA as the records involved are not classified as education records. This highlights significant implications for student privacy rights and underscores the need for clarifying FERPA's definitions to prevent future legal disputes.

Victimizing The Victim: Evicting Domestic Violence Victims From Public Housing Based On The Zero-Tolerance Policy, Tara M. Vrettos

Cardozo Journal of Equal Rights & Social Justice

The note argues that zero-tolerance eviction policies in public housing, authorized under federal law, unjustly penalize domestic violence victims by evicting them for crimes committed by others, including their abusers. These policies, upheld by the Supreme Court in Rucker, disproportionately harm low-income women, pushing them into homelessness and perpetuating cycles of abuse. The note advocates for a nuanced, case-specific approach to balance public safety and tenant rights, drawing parallels to child custody cases where victims are similarly blamed. It calls for federal reform to protect domestic violence survivors and end their victimization by the legal system.

Recognizing The Interdependence Of Rights In The Antidiscrimination Context Through The World Conference Against Racism , Catherine Powell, Jennifer H. Lee

Faculty Scholarship

This background paper assesses the importance of integrating gender into efforts to address racial discrimination and related intolerance in the WCAR process. While this background paper primarily focuses on racial discrimination, the analysis may be applied to xenophobia and related intolerance where these experiences are "raced" experiences. Addressing these forms of intolerance in a comprehensive manner requires unmasking the ways in which race intersects with gender and other status. A gender analysis is needed to make racism more fully visible, because "racial discrimination does not always affect men and women equally or in the same way." Women often experience compounded …

Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction To The Symposium: Homophobia In The Halls Of Justice: Sexual Orientation Bias And Its Implications Within The Legal System, Brenda V. Smith, Pamela Bridgewater

Scholarly Articles in Law Reviews & Journals

The gay moment is unavoidable. -Andrew Kopkind

Gay activist, journalist and political commentator Andrew Kopkind made this profound observation at a critical moment in the queer rights movement, in the midst of the March on Washington, pride rallies, queer organizing and the ever strengthening movement to address the AIDS crisis within the queer community. The moment, however, meant different things to participants in the movement. Over the years, the queer or sexual liberation movement transformed itself into a much more equality-based movement with the most energy focused on securing recognition of gay marriage and equal access to the military. As …

Gendered Shades Of Property: A Status Check On Gender, Race & Property, Laura M. Padilla

Faculty Scholarship

This article explores the relationship between gender, race and property.Women in the United States continue to be economically disadvantaged, and women of color are even more disadvantaged. This article will open with a review of laws, past and present, which have shaped women's rights to own, manage and transfer property. It will then provide a status check of where women, including women of color, stand in the United States relative to the rest of the population vis-a-vis income and other indicators of economic well-being. The article will then discuss why economic inequality persists, trotting out the usual reasons of discrimination …

Elite Privilege And Public Interest Lawyering [Comments], Susan Carle

Scholarly Articles in Law Reviews & Journals

In 1916, Charles Anderson Boston, one of the members of the first national Legal Redress Committee of the National Association for the Advancement of Colored People, spoke at the organization's board of directors meeting to endorse the use of new litigation strategies in the fight against racial segregation. The “proper presentation of the legal fight against segregation,” Boston urged, should focus on gathering “facts, not law” to demonstrate to the courts the law's “actual operation.”; Boston's emphasis on using facts to demonstrate the law's operation accorded with the NAACP's litigation strategy, which relied not only on gathering and presenting such …

Charter Insights For American Equality Jurisprudence, Stephen F. Ross

Faculty Scholarship

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit …

Reparations Litigation: What About Unjust Enrichment?, Margalynne J. Armstrong

Faculty Publications

This Article examines the role of unjust enrichment in substantive and remedial restitution as one option available to the movement that seeks to secure reparations for the descendants of the millions who were enslaved, transported from the African continent, and dispersed throughout the Americas and Europe.  The reparations movement also seeks fitting remedies for the continuing depredations imposed upon people of African descent in the years that have followed the abolition of slavery.  The substantive and remedial law of restitution, particularly the concepts of unjust enrichment and the remedy of constructive trust, provide particularly apt vehicles for reparations claims.

After …

Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appellate outcome, including case complexity, case type, amount in controversy, and whether there had been a judge or a jury trial. Once they accounted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants' advantage exists probably because of appellate judges' misperceptions that trial level adjudicators are pro-plaintiff.

Gender Contests, Susan Frelich Appleton

Scholarship@WashULaw

This contribution for the “Law, Ethics, and Gender in Medicine” column in the Journal of Gender Specific Medicine interrogates the understanding of gender itself, at a time when transgender and intersex issues were just beginning to “come out” in both popular culture and case law. Against this background, the column explores the roles that physicians have played in such gender contests and considers how evolving medical attitudes can help achieve reform.

Feminism And International Law: An Opportunity For Transformation, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

In this essay, the author wants to outline briefly both some of the ways in which the assumptions and categories of international law can be damaging to women, and also some of the ways in which creative feminists could use international law to transform both international policy and the domestic political and legal discourse. In the wake of September 11, a robust feminist engagement with international law and policy is more urgent than ever before.

Contract Rights And Civil Rights, Davison M. Douglas

Faculty Publications

No abstract provided.

An Essay On The Professional Responsibility Of Affirmative Action In Higher Education, Emily Calhoun

Publications

No abstract provided.

Don’T Blame Canada, Arthur S. Leonard

Other Publications

No abstract provided.

Equal Protection Victory, Arthur S. Leonard

Other Publications

No abstract provided.

Court Refuses Moot Role, Arthur S. Leonard

Other Publications

No abstract provided.

Book Review Of Richard C. Cortner’S Civil Rights And Public Accommodations: The Heart Of Atlanta Motel And Mcclung Cases, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Sight, Sound, And Stereotype: The War On Terrorism And Its Consequences For Latinas/Os, Steven W. Bender

Faculty Articles

In the days and weeks following the September 11 terrorist attacks, reports emerged of hate crimes, discrimination, and profiling directed at Arab Americans, Arabs, and Muslims in the United States. Although aware that the primary targets of the public and private response against terrorism were those of Arab or Muslim appearance, I realized that the backlash within the United States also affected Latinas/os and certain other subordinated groups. This Article grew out of my concern that while Latinas/os at first might be deemed "safe" by the American public, their negative societal construction made their targeting inevitable as the fervent, amorphous …

When Interests Diverge, Robert S. Chang, Peter Kwan

Faculty Articles

In this review of Mary Dudziak's important book, Cold War Civil Rights: Race and the Image of American Democracy (Princeton Univ. Press 2000), Professors Chang and Kwan find the book to provide compelling historical narratives about the intersection of the Cold War and civil rights struggles. Dudziak demonstrates through an amazing array of historical evidence a story that runs counter to the standard narrative of racial sin followed by racial redemption, which helps us to reassess who we are and to be cognizant of the work that remains.

Undeserving Addicts: Ssi/Ssd And The Penalties Of Poverty, Dean Spade

Faculty Articles

Since the late 1980's, American media and politicians have produced and participated in a moral panic around the issue of illegal drug use. This panic has generated vivid pictures in the American imagination of drug users as a morally depraved, irresponsible, and willfully criminal underclass. Such images have fueled the "war on drugs," a multi-faceted rhetoric and policy approach to drug use that focuses on incarceration, interdiction, and other criminal justice strategies. The punitive approach of the war on drugs has bled into poverty and disability policy with alarming persistence. The trend has influenced numerous poverty alleviation and disability programs …

Closing Essay: Developing A Collective Memory To Imagine A Better Future, Robert S. Chang

Faculty Articles

This closing essay to a symposium inaugurating UCLA Law School's Program in Critical Race Studies suggests that the racialized Asian American body can operate as a site for collective memory and thus serve as reminders of past mistakes in order to restrain current and future abuses of power. One of the lessons to be learned is from World War II when extreme subordination of one Asian American group, Japanese Americans, was accompanied by the elimination of certain barriers for another Asian American group, Chinese Americans. A similar dynamic may be happening now following September 11. With the increase in legal …

After Intersectionality, Robert S. Chang, Jerome Culp

Faculty Articles

This essay is part of a symposium that looks at what Peter Kwan has described as post-intersectionality theory. It responds to the principal article in the symposium by Nancy Ehrenreich, Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems. While the authors applaud the effort by Ehrenreich to advance identity theory to account for multiple oppression, they suggest that Ehrenreich and other post-intersectionality scholars work to make these theories speak more directly to legal doctrine and legal actors.

When Interests Diverge, Robert S. Chang, Peter Kwan

Michigan Law Review

In her recent book Cold War Civil Rights, Professor Mary L. Dudziak, sets forth "to explore the impact of Cold War foreign affairs on U.S. civil rights reform" (p. 14). Tracing "the emergence, the development, and the decline of Cold War foreign affairs as a factor in influencing civil rights policy" (p. 17), she draws "together Cold War history and civil rights history" (pp. 14-15), two areas that are usually treated as distinct subjects of inquiry. In mixing the two together, she shows that "the borders of U.S. history are not easily maintained." Perhaps it is fitting that the field …

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …