Civil Rights and Discrimination Commons^™

Ai Ethics, Law, And Policy, Pauline Kim, Ryan Durrie

Scholarship@WashULaw

AI technologies promise many benefits, but they can also have significant negative impacts on human health, safety, well-being, and fundamental rights. This chapter explores the different governance tools that have been considered for guiding developments in AI in socially beneficial ways, examining the relevance of ethics, law, and policy. Each of these approaches offer tools to address these concerns; however, each has limitations, and none provides a complete solution in itself. Statements of ethical principles can articulate high-level values and goals to guide behavior but are usually quite vague and difficult to operationalize. They also lack any enforcement mechanism. In …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

Contesting "Address": Conflicts Over The Words We Use To Address And Refer To Each Other, Helen Norton

Publications

Professor Richard Brooks's generative insights provide us with valuable tools for recognizing, and trying to make sense of, address's role in human interactions. That "address"--the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks's Frankel Lecture, I examine some of these conflicts.

As we'll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes …

Transgender Disenfranchisement, Scott Skinner-Thompson

Publications

Transgender and gender variant people are excluded from formal democratic participation at the polls through a variety of legal mechanisms. Such barriers include purportedly neutral voter identification laws, which may prevent transgender people from voting given the obstacles to achieving accurate identification documents in many states, and felon disenfranchisement laws, which exclude the disproportionate number of trans people ensnared in the carceral system.

But, as this Article explains, transgender people are also deterred from public space and participation more broadly through laws and customs specifically policing gender identity. Such laws include so-called bathroom bills that prevent people from accessing facilities …

A New Satanic Panic, Jonathon J. Booth

Publications

A broad backlash to LGBTQ visibility and equality has emerged in recent years. Its conservative proponents have asserted that queer people are Satanic, called gender affirming healthcare child abuse, and labeled adults who teach about gender and sexuality "groomers." This rhetorical shift, combined with an explosion of anti-transgender legislation, may presage a revival of the 1980s Satanic Panic, when fears of brutal crimes allegedly committed by Satanic cults swept the nation. These accusations spurred the longest trial in American history, commanded tabloid news, and led dozens of people to be convicted of lurid crimes, nearly all of whom were later …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

A Civil Rights Defense Of Gentrification, Carol Brown

Law Faculty Publications

Scholars across disciplines such as sociology, economics, and urban planning are writing about gentrification. The literature and beliefs surrounding gentrification are very diverse, but what often connects the various views is a negative perception that gentrification always disadvantages and displaces low-income minority residents, physically or culturally. But the connotations of race and class associated with gentrification in the minds of many do not align with the empirical research and scholarly findings. Thus far in law, there is no thick legal account of gentrification and its legal or policy implications. Much of the legal writing is predicated upon an inaccurate conception …

Viability As Abortion-Rights Orthodoxy, Susan Frelich Appleton

Scholarship@WashULaw

Borrowing a quotation from Justice Jackson’s influential opinion in West Virginia Board of Education v. Barnette, Professors Linda McClain and James Fleming have named their ambitious and illuminating new book “What Shall Be Orthodox” in Polarized Times. As Justice Jackson wrote in applying the First Amendment to protect school children with familial objections to a required flag salute: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

Algorithmic Governance And Nondiscrimination Rights In The Workplace, Pauline Kim

Scholarship@WashULaw

This chapter analyzes existing legal responses to the problem of discriminatory algorithms in the workplace. As firms increasingly rely on algorithms or automated decision systems, a type of artificial intelligence, to manage their workforces, concerns have grown that these tools can systematically exclude historically disadvantaged groups. One response is to rely on traditional anti-discrimination law. These laws clearly prohibit certain forms of algorithmic discrimination; however, the complex, opaque nature of algorithms makes identifying and proving discriminatory harms challenging. Another response looks to broader frameworks of data protection and algorithmic regulation to protect against workplace discrimination. These initiatives are promising, but …

From The Kkk To The Modern Day: How An Accurate Understanding Of History Can Inform The Proper Standard For Punishing Civil Rights Conspiracies Under 42 U.S.C. § 1985(3), Bair Srivastav

American University Journal of Gender, Social Policy & the Law

Following the Civil War, Congress passed the Reconstruction Amendments, which secured political rights for newly freed slaves and ushered in a new era for the United States. The Union defeated white Southerners on the battlefield and removed former Confederates from the halls of political power. But white Southerners were still Confederates in spirit. Full of racial hatred, they did not perceive a new era of freedom, but a world twisted into an unnatural order where African Americans walked freely amongst white people and participated in the political process of Southern society. In response to the extension of basic freedoms to …

From Race-Conscious To Race-Neutral: The Next Generation Of Litigation Over Selective Admissions, Rachel F. Moran

Faculty Scholarship

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form …

Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope Odunsi-Nelson

Faculty Scholarship

This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for …

Effects Of Actualized Language Policy On Ukrainian Stability, 1989-2022, Dawn Hersey

Electronic Theses & Dissertations (2024 - present)

This dissertation seeks to generate a new perspective of the complicated relationship between actualized policy and stability through looking at Ukraine’s language policies and stability in a mixed manner approach that includes both primary and secondary sources. Russia justified its irridentist activities through claiming to protect Russian nationals within Ukraine’s borders: language policies within Ukraine appear to be a trigger for Russian antagonism. Neither Russian irridentism nor Ukrainian nationalism are being considered as right or wrong in this dissertation: the intent is to highlight trends, patterns, and perceptions in alignment with Ukrainian language policy. This dissertation does not present a …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

Sacrifice Zone: Conciliating Racial Discrimination In Louisiana's "Cancer Alley" Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, Ellen Buerk

Case Western Reserve Journal of International Law

In June 2023, the Environmental Protection Agency (EPA) abandoned its civil rights investigation into racially discriminatory practices by Louisiana state agencies in Cancer Alley. It did so after issuing initial findings which indicated those agencies had operated in a racially discriminatory manner, subjecting predominately Black communities to adverse health outcomes resulting from air pollution. This action is one in a long line of violations by the United States of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in Cancer Alley. In light of U.S. inaction in Cancer Alley, other parties to ICERD …

Unveiling Trauma And Seeking Justice: Exploring Mass Atrocities Against Tamils Through The Lens Of Religion, Culture, And Global Justice, Arrabe Vigneswaran

Theses and Dissertations (Comprehensive)

This paper examines the mass atrocities committed against the Tamil population in Sri Lanka, analyzing them through the interconnected lenses of religion, culture, and global justice. It explores how Sinhalese-Buddhist nationalism, codified through legal and constitutional mechanisms such as the Sinhala Only Act and state-sponsored cultural erasure, facilitated the systemic marginalization, displacement, and dehumanization of Tamils. The study investigates the legal, political, and cultural underpinnings of these acts ranging from war crimes and ethnic cleansing to potential genocide while assessing the reluctance of both domestic and international actors to enforce meaningful accountability. Drawing on hybrid court models, transitional justice theories, …

Policing Gender: The Interest Convergence Of Women's And Transgender Rights, Michael Ulrich

Faculty Scholarship

The social, political, and legal landscape has seen a resurgence of gender fundamentalism, seeking to reinforce archaic notions of what it means to be a woman. Social media movements run in tandem with this resurgence of gender fundamentalism. For instance, the “tradwife” phenomenon that romanticizes a domestic, subservient role for women.¹ Alabama Senator Katie Britt most infamously reflected the convergence of these trends when she delivered her response to the State of the Union from a kitchen table and proclaimed that her message was “a direct appeal” to her “fellow moms.”² Meanwhile, executive orders and state laws have …

Private Religious Schools And Disability Discrimination, Kevin Timpe

University Faculty Publications and Creative Works

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …