Civil Rights and Discrimination Commons^™

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

My Friend, Charles Reich, Hon. Guido Calabresi

Touro Law Review

No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman

Touro Law Review

No abstract provided.

Hair Goes Nothing: Proposing The Uniform Enactment Of The Crown Act Across The United States, Alexandra Halbert

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

American University Law Review

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

The Invisible Ban: Negligent Disparate Impact, Kenneth R. Davis

American University Law Review

Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate impact law imposes strict liability on employers for using facially neutral employment practices that have a disproportionately adverse effect on a protected class.

This Article proposes following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The very language of Title VII provides the means to rectify this deficiency …

Closing The Health Justice Gap: Access To Justice In Furtherance Of Health Equity, Yael Cannon

Georgetown Law Faculty Publications and Other Works

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into …

The Right To Feast And Festivals, Juan C. Riofrio

Vanderbilt Journal of Entertainment & Technology Law

Festive behavior is a basic characteristic of human life, as evidenced from ancient times. Humans need to use ceremony and ritual in specific places and times to mark their triumphs, joys, and sorrows. However, some categories of individuals are harmed because they cannot celebrate the most important highlights of their lives through such festive feasts: prisoners, mariners at sea, soldiers on the frontlines, workers subject to the pressures of ungenerous employers, towns occupied by oppressive invaders, and impoverished individuals who cannot afford customary celebrations, among others. When feasts and festivals are restricted, societies lose well-being, communities lose identity, and individuals …

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale— and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Law Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale—and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily suspended …

The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson

Faculty Scholarship

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Deficit Frame Dangers, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.

Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. …

Telehealth And Telework Accessibility In A Pandemic-Induced Virtual World, Blake Reid, Christian Vogler, Zainab Alkebsi

University of Colorado Law Review Forum

This short essay explores one dimension of disability law’s COVID-related “frailty”: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients …

"White Men's Roads Through Black Men's Homes": Advancing Racial Equity Through Highway Reconstruction, Deborah N. Archer

Vanderbilt Law Review

Racial and economic segregation in urban communities is often understood as a natural consequence of poor choices by individuals. In reality, racially and economically segregated cities are the result of many factors, including the nation’s interstate highway system. In states around the country, highway construction displaced Black households and cut the heart and soul out of thriving Black communities as homes, churches, schools, and businesses were destroyed. In other communities, the highway system was a tool of a segregationist agenda, erecting a wall that separated White and Black communities and protected White people from Black migration. In these ways, construction …

Strategies For Equitable Access: Identifying Benefits And Strategies For Creating Integrated Public Schools, Annotated Examples Of Current School District Enrollment Practices, And Resources For Further Exploration, Lisa A. Gooden

Faculty Works

Prepared for the Equity Oriented Strategic Planning Committee for Kansas City Public Schools. Includes a summary of the benefits of integrated schools, strategies for creating equitable schools, annotated examples of current practices employed by public school districts in the United States to foster equitable access to education, and list of links to additional resources for further reading.

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Toward Establishing A Pre-Extinction Definition Of "Nationwide Injunctions", Portia Pedro

Faculty Scholarship

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

Reconstructing Liberty, Equality, And Marriage: The Missing Nineteenth Amendment Argument, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote …

Masterpiece Cakeshop'S Homiletics, Marc Spindelman

Cleveland State Law Review

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Maine Law Review

Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

Baby Suffragettes: Girls In The Woman's Suffrage Movement Across The Atlantic, Mckenzi Christensen

AWE (A Woman’s Experience)

No abstract provided.

Foreword, Honorable Nathaniel R. Jones

Freedom Center Journal

The articles in this issue of The Freedom Center Journal are timely challenges to the persistent efforts to undermine the American values enshrined in the Preamble of the Constitution and the body of the Constitution itself with its three Civil War Amendments.

The student editors of this volume intended the selected contributions to offer readers a nuanced view of our nation’s current identity crisis. The collection is offered in the hope that it will encourage further thinking and discussion about what it means to be part of the American experiment with democratic self-governance in an age of resurgent white supremacy.

Getting A Lawyer While Black: A Field Experiment, Brian Libgober

Lewis & Clark Law Review

In this Article, I present new evidence that African-Americans face unique impediments in obtaining access to counsel. Using a randomized audit design, I show that those with black-sounding names receive only half the callbacks of those with white-sounding names in response to requests for legal representation. I design a larger, follow-up experiment to evaluate variations on the theory of “statistical discrimination”—that lawyers are merely responding to economically relevant signals correlated with race. I find no evidence supporting the expectations of the statistical discrimination theory but some evidence that racial preferences matter. I conclude by presenting a more nuanced theory of …