Civil Rights and Discrimination Commons^™

The Troubling Case(S) Of Noncitizens: Immigration Enforcement Through The Criminal Justice System And The Effect On Families, Juan C. Quevedo

Tennessee Journal of Law and Policy

No abstract provided.

Transcript: The Intersection Of Race And Poverty In Criminal Justice, Stephen B. Bright

Tennessee Journal of Law and Policy

Transcript of the lecture given by Bright at the University of Tennessee College of Law Summers-Wyatt Lecture given on September 27, 2010.

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Faculty Publications

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one's civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated …

Dobbs And Sterilization Decision-Making: Understanding The Coercive Spillover Effects In Reproductive Choice, Thomas Williams

Scholarly Articles in Law Reviews & Journals

The Supreme Court majority in Dobbs v. Jackson Women’s Health Organization argued their decision would have limited impact beyond abortion rights. This Article examines how Dobbs and subsequent state abortion restrictions are likely to increase women’s reliance on permanent sterilization procedures, particularly among already marginalized populations. Drawing on emerging data and historical context, I argue that some post-Dobbs sterilizations should be understood as effectively coerced by state policies, implicating reproductive justice concerns and potentially undermining fundamental rights established in Skinner v. Oklahoma. Then, I demonstrate how interdisciplinary bioethics frameworks and methodologies can help courts better understand the full implications of …

Parental Rights Or Political Ploys? Unraveling The Deceptive Threads Of Modern “Parental Rights” Legislation, Cecilia Giles

University of Cincinnati Law Review

No abstract provided.

Protecting Protected Characteristics: Statutory Solutions For Employment Discrimination Post-Bostock, Chase Mays

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for these protected characteristics. This Note examines the use of race-based hairstyles, gendered-appearance standards, and citizenship as proxies for race, sex, and national origin, respectively, and how the availability of such proxies inhibits Title VII’s goal of creating equal employment opportunities. The Supreme Court’s dicta in Bostock v. Clayton County offer potential redress to …

Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short

Faculty Scholarship

Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.

This Article …

The Remedial Rationale After Sffa, Olatunde C.A. Johnson

Faculty Scholarship

After the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) limiting the ability of higher education institutions to use race as a factor to advance diversity in the student body, at least one prominent commentator suggested that universities should now justify their affirmative action policies based not on diversity but on the need to remedy discrimination. Chief Justice John Roberts’s majority opinion deems diversity — the rationale established in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger — a “commendable” goal. But the …

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

Toward Accessing Hiv-Preventative Medication In Prisons, Scott Shimizu

Northwestern University Law Review

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel …

A Democracy Story: Reframing A Free Speech Landmark, Thomas Healy

Michigan Law Review

A review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas.

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson

University of Cincinnati Law Review

No abstract provided.

Deny, Defund, And Divert: The Law And American Miseducation, Janel A. George

Georgetown Law Faculty Publications and Other Works

Racial inequality in public education is not inevitable, it is constructed. The law has been elemental in crafting racial inequality in public education. In this Article, I posit that lawmakers seeking to entrench racial inequality in and through public education do so by enacting laws designed to deny Black children access to education, defund public schools disproportionately attended by Black children, and divert many Black educators away from the public education system. This Article draws a through-line between laws enacted to prevent desegregation in the aftermath of the Brown v. Board of Education ruling—an era known as massive resistance—and recently …

To Save Our Democracy, Stop Desantis’ Racist Education Crusade, Lewis Steel '63

Articles and Writings

No abstract provided.

The Bias Presumption, Bradley A. Areheart, Dave Hall

Scholarly Works

The American workplace is a fractured sphere of public life, in which white men often wield power at the expense of women and people of color. However, that power imbalance is no longer fully imbued with the active animus that characterized the first few centuries of American life; now, much of the damage done by discrimination is done structurally and implicitly. Consequently, the operation of bias and disadvantage is often invisible to employers and employees alike. The problem of discrimination in American life is thus larger and deeper than a few bad actors, and it will be impossible to solve …

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Toward Equal Access: A Model For Lay Advocacy Programs Serving People Who Are Deaf Or Hard Of Hearing, Melissa Bell

JADARA

Advocacy programs are prevalent among state government agencies that specialize in serving persons who are deaf or hard of hearing around the United States. The work is crucial to ensuring equal access and equal opportunity, yet the lay advocacy profession is not yet formalized with certification, ethical standards, or training programs for advocates serving this population. Research was conducted to advance efforts to maximize these programs’ effectiveness by compiling components of an ideal model for lay advocacy programs. Directors from state agencies that specialize in serving this population around the country refined the model and described the structure of their …

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Network Capabilities In Land Use And Disability Law, Robin Paul Malloy

American University Law Review

Our communities must be made safe and easy to navigate by people with disabilities and by those who are seeking to age in place. This requires us to do land planning and zoning in a cost-conscious way that empowers a diverse population to readily participate in community life. Accomplishing this goal involves working at the intersection of land use law and disability law. This means we must work at the intersection of competing legal frameworks, one based on the exercise of the sovereign police powers and the other based on the prevention of discrimination under civil rights law.

The fundamental …

How Can Law Enforcement Use Technology To Protect Citizens Justly?, Zach Kantenwein

Emerging Writers

This paper explores the danger of emerging artificial intelligence technology perpetuating racial injustice in law enforcement and how police can ensure the protection of citizens amid this information age. We dissect a real-world case in which AI predictive policing technology resulted in alarming racial discrimination against American minority citizens. We discuss the possible explanations for this result and explore the limitations of artificial intelligence technology. Furthermore, we brainstorm methods for ensuring American citizens' just and constitutional protection as new technology is developed and tested. We propose implementing transparency laws that make the details about any policing technology and surveillance available …

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

Bodies On The Line: An Analysis Of Incarceration And Assassination And Their Role In The Civil Rights Movements, Courtney Mason

Law Student Publications

The history of American civil rights is understood largely through the context of various mass movements. Most famously, the Civil Rights Movement of the 1950s and 1960s was a remarkable representation of collective action. The success of that movement becomes even more significant when considering the realities of life for Black Americans at the time. In the spirit of those movements, the 2010s and 2020s have brought about modern movements that continue to push against discrimination toward Black Americans and push for progress in the legal system. The movements each were and are met with opposition. This article focuses on …

Trans Animus, Scott Skinner-Thompson

Publications

No abstract provided.

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Section 230 As Civil Rights Statute, Enrique Armijo

University of Cincinnati Law Review

Many of our most pressing discussions about justice, progress, and civil rights have moved online. Activists advocating for social change no longer need to be in the same physical space to connect with others who share their challenges and aspirations. But the convergence of mobility, connectivity, and technology is not the only reason why. Thanks to Section 230 of the Communications Decency Act’s (“Section 230”) immunity for online platforms, websites, and their hosts, speakers can engage in speech about protest, equality, and dissent without fear of collateral censorship from governments, authorities, and others in power who hope to silence them. …

Ethical Implications Of Ai-Based Algorithms In Recruiting Processes: A Study Of Civil Rights Violations Under Title Vii And The Americans With Disabilities Act, Vanessa Rodriguez

Cyber Operations and Resilience Program Graduate Projects

This research paper analyzes the ethical implications of utilizing artificial intelligence, specifically AI-based algorithms in business selection and recruiting processes, with a focus on potential violations under Title VII of the Civil Rights Act of 1964 and Title 1 of the Americans with Disabilities Act (ADA). Amazon’s attempt at launching AI recruiting tools is examined. This paper will assess the fairness of AI recruiting practices, considering data collection, potential biases, and accuracy concerns in its implementation process. Additionally, the paper will provide an overview of federal civil rights statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and recent …

Remedying The Insular Cases: Providing Tribal Sovereignty To Unincorporated Territories To Ensure Constitutional Rights For All U.S. Nationals And Citizens, Allison Ripple

William & Mary Bill of Rights Journal

This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates …

Sexual Orientation At The Crossroads, Johan D. Van Der Vyver

Marquette Benefits and Social Welfare Law Review

The decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the …