Civil Rights and Discrimination Commons^™

The End Of Indeterminacy In Affirmative Action, Carla D. Pratt

Valparaiso University Law Review

No abstract provided.

Delimiting Title Vii: Reverse Religious Discrimination And Proxy Claims In Employment Discrimination Litigation, Andrea J. Sinclair

Vanderbilt Law Review

In July 2012, Chick-fil-A President and Chief Operating Officer Dan Cathy remarked to a religious publication that he and his company supported the "biblical definition of the family unit."' Chick- fil-A is popularly known as a Christian company that promotes conservative, biblical values. Mr. Cathy's statement was largely interpreted by the media as an "anti-gay" sentiment rooted in religious beliefs. In response to Mr. Cathy's remark, government officials from Boston and Chicago refused to allow the restaurant chain to open new locations in their cities, citing the organization's official policy of "discrimination." The Chick-fil-A controversy demonstrates how the intersection of …

Race Indeed Above All: A Reply To Professors Andrea Curcio, Carol Chomsky, And Eileen Kaufman, Dan Subotnik

Scholarly Works

This article was written as part of an ongoing dialog about the author’s previous article, Does Testing = Race Discrimination?: Ricci, The Bar Exam, the LSAT, and the Challenge to Learning, which defended the Supreme Court’s decision in Ricci v. DeStefano, as well as defending testing more generally against charges of irrelevance, racial obtuseness, and most seriously, race discrimination.

This article specifically responds to Andrea A. Curcio, Carol L. Chomsky, and Eileen Kaufman’s article, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others.

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

Scholarly Works

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

Scholarly Works

Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang

Faculty Articles and Papers

Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …

Revealing The Race-Based Realities Of Workforce Exclusion, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to …

The Intertwined Fates Of Affirmative Action And The Military, Robert Knowles

Loyola University Chicago Law Journal

This Article explores the deep connections between the crises facing the military and affirmative action. The military struggles with a sexual assault epidemic and a related failure to achieve gender and racial equality, both of which undermine its ability to effectively carry out its mission. Affirmative action faces growing skepticism from the American public and from the courts, which have been gradually eliminating the ground on which gender- and race-conscious measures can be constitutionally justified.

In this time of crisis for both, the military and affirmative action need each other like never before. Affirmative action needs the military to tell …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

Technology, Alienation, And The Future Of Litigation-Based Social Change, Dana Neacsu

Law Faculty Publications

This article addresses the apparent inconsistency of the impact technology has on the "rights vocabulary." It theorizes how, in certain circumstances, it erodes this progressive vocabulary by making it and the subsequent judicial litigation superfluous.

Montana's Rural Version Of The School-To-Prison Pipeline: School Discipline And Tragedy On American Indian Reservations, Melina Healey

Scholarly Works

American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. While these are typical of the school-to-prison phenomenon as it also appears in poor minority communities across the country, the rates and the disproportion for American Indians in Montana are particularly acute. Even more disturbing, many American Indian students in Montana are also the victims of another heartbreaking trend related to the school-to-prison pipeline — alarming levels of adolescent suicides and self-harm. The tragic situation …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

"Not Without Political Power": Gays And Lesbians, Equal Protection, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs. A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

UF Law Faculty Publications

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Cleveland State Law Review

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animusfocused jurisprudence for lifting the discrimination against the …

The Many Lanes Out Of Court: Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Law Faculty Scholarship

Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts' inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants …

The Trouble With Torgerson: The Latest Effort To Summarily Adjudicate Employment Discrimination Cases, Theresa M. Beiner

Law Faculty Scholarship

No abstract provided.

A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker

All Faculty Scholarship

This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. …

Undoing Race? Reconciling Multiracial Identity With Equal Protection, Lauren Sudeall Lucas

Faculty Publications By Year

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition …

Making The World In Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, And The Legislative History Of The United Nations Race Convention, H. Timothy Lovelace

Articles by Maurer Faculty

No abstract provided.

Retaliation In An Eeo World, Deborah L. Brake

Indiana Law Journal

This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies …

Archcity Defenders: Municipal Courts White Paper, Michael-John Voss

Faculty White Papers

ArchCity Defenders represents St. Louis’ indigent on a pro bono basis in criminal and civil legal matters while working closely with social service providers to connect clients with services. Our primary goal is to remove the legal barriers preventing our clients from accessing the housing, job training, and treatment they need to get on with their lives

A Life In The Law: An Interview With Drew Days, Rodger D. Citron

Touro Law Review

Drew S. Days, III, has lived an extraordinary life in the law. Born in the segregated South, Days graduated from Yale Law School in 1966 and pursued a career as a civil rights lawyer. In 1977, he was appointed Assistant Attorney General for Civil Rights. After his stint in the administration of President Jimmy Carter, Days became a professor at Yale Law School. Then, in 1993, he was appointed So-licitor General of the United States, serving in that position until 1996. He now holds the position of Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law at …

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

Illusion Of School Choice Leaves Chicago Pupils With No Choice, Elise Robie

Public Interest Law Reporter

School choice ostensibly empowers parents and students to have control over their education. However, despite the facade of school choice in Illinois, in reality parents and students effectively have little to no school choice, especially in the City of Chicago. The presence of charter schools overpowers traditional public schools, and without a solid voucher system parents do not have valid control over their children's education. Parental involvement in a child's education plays a crucial role in a child's success, and lack of genuine school choice stymies parental involvement and control.

Access To Justice: Ensuring Meaningful Access To Counsel In Civil Cases, Human Rights Clinic

Human Rights Institute

In order to meet its human rights obligations, the federal government must work toward the establishment of the right to counsel for indigent litigants in civil cases, especially where basic human needs are at stake. Direct steps the federal government should take include: supporting research into the impact of providing counsel in civil cases; fully funding the Legal Services Corporation and lifting restrictions that prevent legal services lawyers from providing necessary services; intensifying the Acc,ess to Justice Initiative's activities with respect to civil legal services and providing it with the necessary leadership and resources; and filing supportive amicus briefs when …

Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson

Faculty Articles

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Stabilizing Morality In Trademark Law, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …