Civil Rights and Discrimination Commons^™

The Civil Rights Legacy Of Fr. Theodore M. Hesburgh, C.S.C., Jennifer Mason Mcaward

Journal Articles

This Speech will discuss Fr. Hesburgh's advocacy on these core civil rights issues-education, employment, housing, and voting rights-and how his work changed the face of this country. The story of Fr. Hesburgh's civil rights advocacy is a key to understanding how he emerged-in the words of Vice President Biden-as "one of the most powerful unelected officials this nation has ever seen."

Race Inequity Fifty Years Later: Language Rights Under The Civil Rights Act Of 1964, Jasmine Gonzales Rose

Faculty Scholarship

As Latinos have become the largest racialized minority in the United States, we should ask whether the civil rights laws of yesterday are equipped to address the race problems of today. Half a century after the passage of the Civil Rights Act of 1964, racial discrimination still exists, but it manifests itself differently. Rather than explicitly barring someone from employment, education, public accommodations, or civic participation on the basis of his or her race, racially discriminatory exclusion is often couched in seemingly race-neutral terms. English language requirements are one example of this. A sign outside a restaurant stating, “No Mexicans, …

Symposium: Building The Arc Of Justice: The Life And Legal Thought Of Derrick Bell: Foreword, Matthew H. Charity

Faculty Scholarship

The four articles in this Symposium issue pay tribute to the work of Professor Derrick Bell by building on his challenges to the permanence of racial domination, to the potential limitations of good will inherent in the concept of interest convergence, and to the question of permanence not just of racism, but of other systemic biases since recognized, written on, and litigated. The articles range from the 19th century to the hegemonic war on terror, from Latin identity as a disruptive force, to recognition of subjugated identities allowing for the creation of coalitions to end oppression.

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.