Civil Rights and Discrimination Commons^™

You’Ve Come A Long Way, Baby: Two Waves Of Juvenile Justice Reforms As Seen From Jena, Louisiana, Sara Sun Beale

Faculty Scholarship

This article describes the origins and impact of two modern reforms that dramatically rewrote the law governing the prosecution of juvenile offenders: the Warren Court’s due process decisions and the juvenile justice legislation of the 1990s. Beginning with the prosecution of Mychal Bell, who was one of the Jena 6, the article provides a broader historical and analytical framework to assess the procedural protections available to juveniles charged with serious offenses, particularly the adequacy of the remedies to challenge prosecutorial discretion and disparate treatment by the prosecution.

The article first describes the key role race played in the Warren Court’s …

I Dream Of Gina: Understanding The Employment Provisions Of The Genetic Information Nondiscrimination Act Of 2008, William J. Mcdevitt

Villanova Law Review (1956 - )

No abstract provided.

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Faculty Publications

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.

A Radically Immodest Judicial Modesty: The End Of Facial Challenges To Abortion Regulations And The Future Of The Health Exception In The Roberts Era, B. Jessie Hill

Faculty Publications

If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court’s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number …

Preparing For Disaster: Protecting The Most Vulnerable In Emergencies, Sharona Hoffman

Faculty Publications

Many federal, state, local and private entities are investing significant resources in disaster readiness initiatives. Often disregarded, however, are the special needs of vulnerable populations during disasters. In the context of emergencies, vulnerable groups may include individuals with disabilities, pregnant women, children, the elderly, prisoners, members of ethnic minorities, people with language barriers, and the impoverished. The fate of the disadvantaged during disasters has received little attention in the legal literature, and this article begins to fill that gap. It examines ethical theories of distributive justice and existing federal and state civil rights and emergency response laws and argues that …

Safford Unified School District No. 1 V. Redding, And The Future Of School Strip Searches, Lewis R. Katz

Faculty Publications

Each year in America an unknown number of children in primary and secondary schools are strip searched by teachers and/or school administrators, forced to remove pants and shirts down to their underwear and sometimes forced to expose their breasts and genitals. In Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (29), the Supreme Court weighed in on the issue, finding that school officials violated the child’s Fourth Amendment rights during a strip search but reversing the Ninth Circuit and awarding the school officials qualified immunity not withstanding the ineptitude of the investigation. The Court purported to apply …

Landlords Needed, Tolerance Preferred: A Clash Of Fairness And Freedom In Fair Housing Council V. Roommates.Com, Adam Weintraub

Villanova Law Review (1956 - )

No abstract provided.

With Righteousness In His Suitcase: Reflections On The Ministry Of Dr. Martin Luther King, Jr., D.R. Whitt

Villanova Law Review (1956 - )

No abstract provided.

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas

Faculty Journal Articles and Book Chapters

This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights …

Wheel Of Fortune: A Critique Of The "Manifest Imbalance" Requirement For Race-Conscious Affirmative Action Under Title Vii, Kenneth R. Davis

Georgia Law Review

This Article criticizes the Supreme Court's requirement, under Title VII of the 1964 Civil Rights Act, that a voluntary affirmative action plan must seek to eliminate "a manifest imbalance in traditionally segregated job categories." Although supposedly advancing the goals of Title VII, the manifest imbalance requirement interferes with achieving those goals. It prevents civically conscientious employers from instituting affirmative action, while it does nothing to promote the values of equal employment opportunity, meritocracy, or fairness to non minority workers. For example, in Schurr v. Resorts International Hotel, Inc., 196 F.3d 486 (3d Cir. 1998), a hotel in Atlantic City adopted …

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael L. Wells, Alice E. Snedeker

Georgia Law Review

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a "class-of-one"equal protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This Article proposes another basis on …

Working In The Public Interest Law Conference, Mary Bauer, Ajamu Baraka, David C. Fathi

Conferences and Symposia to 2010

The two-day event consisted of numerous panels and roundtable discussions with notable speakers from across the country. Panels explored topics such as the problem of eyewitness testimony in capital cases, examining the health law partnership, the harsh sentencing of juvenile offenders, same-sex marriage, the prevalence of sex trafficking and the sexual exploitation of minors, and combating economic disparity with civic engagement. Supreme Court review, ethics in practice, funding a public interest career, and race and the law were also addressed during lunch roundtable discussions.

The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas

Law Faculty Scholarly Articles

The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory …

Strader V. Graham: Kentucky's Contribution To National Slavery Litigation And The Dred Scott Decision, Robert G. Schwemm

Law Faculty Scholarly Articles

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court. After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent …

Choosing Those Who Will Die: The Effect Of Race, Gender, And Law In Prosecutorial Decision To Seek The Death Penalty In Durham County, North Carolina, Isaac Unah

Michigan Journal of Race and Law

District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in …

Do Not (Re)Enter: The Rise Of Criminal Background Tenant Screening As A Violation Of The Fair Housing Act, Rebecca Oyama

Michigan Journal of Race and Law

Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, …

Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts

Michigan Journal of Race and Law

Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law …

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public …

Eliminating Racial Discrimination In The Subprime Mortgage Market: Proposals For Fair Lending Reform, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

Red: Racism And The American Indian, Bethany Berger

Faculty Articles and Papers

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

Neutral Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker

Loyola University Chicago Law Journal

No abstract provided.

The State As Batterer: Learning From Family Law To Address American's Family-Like Racial Dysfunction, Angela Mae Kupenda

Journal Articles

The women's movement for equality bootstrapped to the movement for equality for Blacks. Now the reverse can happen. This Article uses family law and the plight of some battered women, as a lens to address analogous racial conflicts in the broader American family.

Desegregation Law And Jurisprudence, Wendy B. Scott

Journal Articles

My Essay provides context for the articles that query the contemporary relevance of integration. Part I addresses the challenge of understanding desegregation and its relationship to integration. Part II explores the equality rationales offered by courts and scholars to support or reject integration as the most viable method for achieving desegregation. The Essay concludes that we should move beyond substantive equality to anti-subordination strategies targeted at the deeply entrenched structural inequalities that marginalize children in poor or racially-isolated schools.

The Future Of Fair Housing And Fair Credit: From Crisis To Opportunity, Symposium: New Strategies In Fair Housing, John A. Powell, Jason Reece

Cleveland State Law Review

The following paper provides an assessment of the current housing and credit crisis from a racial justice lens. The paper explores how race was interwoven into the current crisis and demonstrates the racialized impacts of the housing and credit crisis. We also explore some of the current challenges facing fair housing in our society, presenting concepts and models of reform to promote true integration with opportunity. We close with a new paradigm for addressing fair housing in the future and utilizing the opportunities presented by this crisis to produce a fair housing opportunity and a just society for all.

Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Book Chapters

Sidney Mintz’s Worker in the Cane is a model life history, uncovering the subtlest of dynamics within plantation society by tracing the experiences of a single individual and his family. By contrast, Mintz’s Sweetness and Power gains its force from taking the entire Atlantic world as its scope, examining the marketing, meanings, and consumption of sugar as they changed over time. This essay borrows from each of these two strategies, looking at the history of a single peripatetic family across three long-lived generations, from enslavement in West Africa in the eighteenth century through emancipation during the Haitian Revolution in the …

Doctrinal Dilemma, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

UF Law Faculty Publications

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt. Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …