Civil Rights and Discrimination Commons^™

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Fordham Law Review

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of The Voting Rights Act Of 1965, Bridgette Baldwin

Faculty Scholarship

The Supreme Court, having found that certain states received unequal treatment under the Voting Rights Act, struck down the Act’s preclearance provision in its Shelby v. Holder holding. The Author, in an effort to critique the conclusion reached by the Court, argues that these states, historically responsible for obstructing the ability of African-Americans to vote, continue to engage in practices that result in voting irregularities and acts of discrimination in the electoral process. Today, this strategic disenfranchisement rears its head in the form of legislation making voting difficult or impossible for many minority voters, a criminal justice system that targets …

Preferential Judicial Activism, Sudha Setty

Faculty Scholarship

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the …

Say Her Name: Resisting Police Brutality Against Black Women, Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, Luke Harris

Faculty Scholarship

Say Her Name sheds light on Black women’s experiences of police violence in an effort to support a gender-inclusive approach to racial justice that centers all Black lives equally. It is our hope that this document will serve as a tool for the resurgent racial justice movement to mobilize around the stories of Black women who have lost their lives to police violence ...Our goal is not to offer a comprehensive catalog of police violence against Black women – indeed, it would be impossible to do so as there is currently no accurate data collection on police killings nationwide, no …

Religion And Marriage Equality Statutes, Nelson Tebbe

Cornell Law Faculty Publications

To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated …

Addressing Systemic Discrimination: Public Enforcement And The Role Of The Eeoc, Pauline Kim

Scholarship@WashULaw

Cases challenging systemic discrimination have always constituted an important slice of litigation under Title VII. Early government enforcement efforts sought thorough-going reform of employment practices in major industries. Private litigants have also pursued cases alleging systemic discrimination through class action litigation. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, however, made it considerably more difficult for private plaintiffs to pursue claims of systemic discrimination by raising the bar for certifying class actions. In the wake of the Court’s decision in Wal-Mart, many urged the Equal Employment Opportunity Commission (“EEOC”) to use its enforcement powers to take up the …

Market Norms And Constitutional Values In The Government Workplace, Pauline Kim

Scholarship@WashULaw

The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the …

Good Faith Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court's current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court's racial jurisprudence stem from the Court's willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.

How The Other Half Banks, Daria Roithmayr

Publications

No abstract provided.

More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Daria Roithmayr

Publications

In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First, our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision-making, but adding women has …

Has The “Machinery Of Death” Become A Clunker?, Stephen F. Smith

Journal Articles

From the Essay

This symposium essay sounds a cautionary note while ultimately remaining agnostic about what the future holds for the death penalty. There are a variety of reasons to be skeptical about the abolitionists' newfound optimism. The usual reasons for optimism about ending the death penalty-sharp declines in public support for the death penalty and of the ultimate sanction-do not necessarily portend the demise of the death penalty. This essay argues that other factors can account for recent declines in capital punishment and that there are countervailing factors suggesting that the American death penalty is alive and well, despite …

Built For Boyhood?: A Proposal For Reducing The Amount Of Gender Bias In The Advertising Of Children's Toys On Television, Nareissa L. Smith

Vanderbilt Journal of Entertainment & Technology Law

While the last half-century has seen a dramatic increase in the number of US women in the workforce, women remain under represented in STEM (Science, Technology, Engineering, and Mathematics) fields. For years, researchers and social commentators have tried to explain the persistence of this gender gap. Some have even argued that genetic differences explain women's inability to excel in the hard sciences. This Article asserts that the impact of socialization on children's educational and occupational choices has been greatly underestimated. Specifically, the toys that are marketed to boys teach spatial skills that prepare boys for STEM careers. Conversely, the toys …

Report From The Restorative Justice Process At The Dalhousie University Faculty Of Dentistry, Jennifer Llewellyn, Jacob Mcissac, Melissa Mackay

Reports & Public Policy Documents

In December 2014, female students in Dalhousie University’s Faculty of Dentistry filed complaints under the University’s Sexual Harassment Policy after they became aware some of their male colleagues had posted offensive material about them in a private Facebook group. The select materials revealed from the Facebook group reflected misogynistic, sexist and homophobic attitudes. At the complainants’ request, the University began a restorative justice process to investigate the matter, address the harms it caused and examine the climate and culture within the Faculty that may have influenced the offensive nature of the Facebook group’s content. Twenty-nine students from the class of …

An Immovable Object And An Unstoppable Force: Reconciling The First Amendment And Antidiscrimination Laws In The Claybrooks Court, Erin A. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

This Note broadly addresses the problem of racial stereotyping and racial roles in the media. It is viewed through the lens of Claybrooks v. ABC, Inc., a recent federal district court decision of first impression. In Claybrooks, the court dismissed the plaintiffs discrimination claims, ruling that casting decisions were protected under the First Amendment. This Note will address the problem of racial discrimination by focusing on racial misrepresentations in the media and the role of reality television programs in that landscape. Specifically, this Note will propose a new solution for the Claybrooks court. This analysis will assert that cast members …

The Right To Counsel In Utah: An Assessment Of Trial-Level Indigent Defense Services, The Sixth Amendment Center, The Defender Initiative

Fred T. Korematsu Center for Law and Equality

The Right to Counsel in Utah

An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State, Robert C. Boruchowitz, Peter A. Collins, Matthew J. Hickman, Mark A. Larranaga

Fred T. Korematsu Center for Law and Equality

An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State

Transitions: From Danielle To Daniel, From Victim To Advocate, Daniel Bryner, Starcia Ague

Seattle Journal for Social Justice

No abstract provided.

The Policing Of Major Events In Canada: Lessons From Toronto's G20 And Vancouver's Olympics, W. Wesley Pue, Robert Diab, Grace Jackson

All Faculty Publications

Major events ranging from sporting events to major international conferences too often result in disorder, deployment of riot squads, and mass arrests. Events surrounding a meeting of the G20 in Toronto and those at Vancouver’s Winter Olympics provide insight into the ways in which things can go wrong and the ways in which they can go well at major events. This article employs a “thick history” of events in order to explore gaps in Canadian law, including gaps between “law in the books” and “law in action.”
The legal frameworks governing large-scale events affect the likelihood of success measured in …

Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner

Loyola of Los Angeles Law Review

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.

The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Public Accommodations And The Civil Rights Act Of 1964: A Surprising Success?, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

When the Civil Rights Act of 1964 became law the Johnson Administration had ample reason to worry that Title II of the Act, forbidding racial discrimination in public accommodations, would meet widespread, even violent resistance in the Deep South. The Supreme Court upheld Title II’s constitutionality, based on the Commerce Clause of the Constitution. Despite pockets of resistance, within a few years of the passage of the Act, racial discrimination in public accommodations had become the exception, not the rule. While some problems remain, Title II has, on the whole, been remarkably successful. The melting of resistance to Title II …

Venturing Into A Minefield: Potential Effects Of The Hobby Lobby Decision Of The Lgbt Community., Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

While freedom of religion is a right guaranteed to the American people, what that freedom entails, is often misunderstood. Religious freedom affords every American the right to practice any faith without fear of being persecuted or ostracized by the government. This fundamental right is frequently used to oppress certain groups of Americans because their lifestyle is not in accordance with traditional Christian values. This was highlighted in the recent case of Burwell v. Hobby Lobby. The controversy stemmed from the corporation’s use of religion as a method to deny women access to full healthcare coverage, citing religious opposition to abortion …

Poverty, Dignity, And Public Housing, Jaime Alison Lee

All Faculty Scholarship

Antipoverty efforts are persistently subverted by broad societal contempt for poor people. The belief that poor people are morally and behaviorally inferior, and that their personal failings are the cause of their own poverty, is a staple of American opinion polls and political rhetoric. This presumption is so widespread that it even permeates antipoverty programs, which treat poor people with disdain even as they offer aid and assistance.

Income discrimination creates not just social stigma, but legal inequalities. The Supreme Court recognized some forty years ago that welfare law promoted wealth-based Constitutional inequalities, and responded by invoking the doctrines of …

Marriage As Black Citizenship?, Robin A. Lenhardt

Faculty Scholarship

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not …

Marriage Equality Comes To Wisconsin, Carl W. Tobias

Law Faculty Publications

Marriage equality has swept America. Numerous federal judges, including Western District of Wisconsin Judge Barbara Crabb, have invalidated state proscriptions on same-sex marriage. This paper scrutinizes U.S. litigation, Crabb’s opinion, Seventh Circuit affirmance, and Supreme Court resolution. Finding that Wisconsin shows how to efficaciously institute full marriage equality, even as other states have not, the piece affords future suggestions.