Civil Rights and Discrimination Commons^™

Making Me Ill: Environmental Racism And Justice As Disability, Britney Wilson

Articles & Chapters

Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District …

Parens Patriae, Punishment, And Pandemics: The State’S Responsibility For Incarcerated Persons During A Public Health Emergency, Meredith Harrell

Journal of Law and Health

This article looks at the nation’s response to the COVID-19 pandemic since March 2020 and explores the commonalities and differences of states’ actions to protect their citizens, especially the most vulnerable populations. The article discusses the government’s obligations to jailees and prisoners during the COVID-19 pandemic and how incarcerated persons have been consistently failed by the institutions that are required to protect them. The article examines possible remedies for these governmental and institutional failings under the Eighth Amendment and § 1983 civil rights claims. Ultimately the article proposes that monetary damages would provide relief to incarcerated individuals and their families …

Policing Police Tech: A Soft Law Solution, Farhang Heydari, Barry Friedman, Max Isaacs, Katie Kinsey

Vanderbilt Law School Faculty Publications

Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.
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/="/">Despite these risks, new policing tech products continue to be adopted and deployed without sufficient …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Scholarship

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Importing Indian Intolerance: How Title Vii Can Prevent Caste Discrimination In The American Workplace, Brett Whitley

Arkansas Law Review

"If Hindus migrate to other regions on [E]arth, [Indian] Caste would become a world problem." - Dr. B.R. Ambedkar (1916) Imagine it is the year 2020. You are one of the more than 160 million people across India that are labeled as Dalits, formerly known as the “Untouchables." Most Hindus view Dalits as belonging to the lowest rung in the ancient system of social stratification that impacts individuals across the globe called the caste system. Your people have endured human rights abuses for centuries, but luckily, neither you nor a loved one have ever been the victim of one of …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

American Declaration On The Rights Of Indigenous Peoples, Organization Of American States. General Assembly.

AALL Legal Website of the Month

The American Declaration on the Rights of Indigenous Peoples was adopted at the Third Plenary Session of the Organization of American States (OAS) General Secretariat held on June 15, 2016. The indigenous peoples of the Americas are culturally distinct groups who maintain an ancestral bond to the lands where they live or wish to live. Also, the Indigenous peoples of the Americans have the right to live in harmony with nature and to a healthy, safe, and sustainable environment, essential conditions for the full enjoyment of the right to life, to their spirituality, world view and to collective well-being.

Deflect, Delay, Deny: A Case Study Of Segregation By Law School Faculty Before Brown V. Board Of Education, Briana Lynn Rosenbaum

Tennessee Law Review

Many histories of school desegregation litigation center on the natural protagonists, such as the lawyers and plaintiffs who fought the status quo. Little attention is paid to the role that individual faculty members played in the perpetuation of segregated legal education. When the antagonists in the historiographies do appear, it is usually as anonymous individuals and groups. Thus, "the Board of Regents" refused to change its policy and "the University" denied a person's application.

But recently discovered and rarely accessed historic documents provide proof of the direct role that some law school faculty members played in the perpetuation of segregation. …

Uneasy Lies The Head: Tracking A Loophole In Racial Discrimination Law, Kate E. Britt

Law Librarian Scholarship

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Historically, courts have ruled in favor of workplace grooming policies that prohibit most natural Black hairstyles as not unlawfully discriminatory within the scope of Title VII. This article discusses hair discrimination in workplaces and how federal, state, and local legislators are attempting to close this loophole.

Civil Rights In The Workplace: It's Time To Cut The Excess And Get To The Truth, Hnin N. Khaing

American University Journal of Gender, Social Policy & the Law

On February 8, 1964, during the last few hours before the enactment of the Civil Rights Act, thanks to an individual described as a “racist, male octogenarian,” Congress haphazardly added “sex” as a prohibited basis for discrimination alongside race, color, religion, and national origin under Title VII1 of the Act. It was not until two decades later, in 1986, that the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII. Five years later, Anita Hill’s riveting public testimony, during the nomination hearings for Justice Clarence Thomas, ignited a nationwide discussion on sexual harassment. A quarter …

A Declaration Of Rights Lost: The Diminution Of Tennesseans' Civil Rights, Bailey D. Barnes

Faculty Publications

The Constitution of the State of Tennessee, in its current form, offers to the citizens of the Volunteer State a "Declaration of Rights" that prevents abuses by those in power against the governed. To paraphrase late Associate United States Supreme Court Justice Antonin Scalia, the Tennessee Constitution, which was adopted following the state's secession from and eventual return to the United States during the Civil War, continues to serve as the charter of Tennesseans' liberties. Indeed, the Tennessee Constitution's Declaration of Rights proclaims in the very first section, "[A]ll power is inherent in the people, and all free governments are …

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Title Ix Abroad: A Proposed Framework For Extraterritorial Application, Christina Vieira Da Rosa

Lewis & Clark Law Review

Regulatory changes to Title IX made clear that the statute’s sexual assault grievance procedures do not apply to incidents that take place outside the United States. This Comment explores the reasoning underlying these 2020 regulations, which signal a departure from prior interpretations of Title IX and limit recourse for U.S. students who are sexually assaulted while studying abroad. Ultimately, this Comment argues that Title IX should have an extraterritorial reach when both complainant and respondent are affiliated with U.S. institutions. Such a change would harmonize Title IX’s underlying purpose with the practical difficulties of investigating and adjudicating conduct occurring outside …

Zero To Hero: The Unavailability Of Bivens And Why Congress Should Intervene, Amanda Pulido

FIU Law Review

n Bivens, the Supreme Court held that although 42 U.S.C. § 1983 is silent as to its application to federal agents, the plaintiff had an implied cause of action against federal agents for violation of his constitutional rights. Since this decision, the Court has heavily narrowed the implied Bivenscause of action and punted the decision to Congress to codify a cause of action against federal agents. As the law currently stands, plaintiffs must overcome a confusing framework that conflates constitutional merits with whether a cause of action exists, affords extreme deference to executive decisions, and is presumptively unavailable. In June …

Duty And Diversity, Chris Brummer, Leo E. Strine, Jr.

Vanderbilt Law Review

In the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.

In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we …

Grey State, Blue City: Defending Local Control Against Confederate “Historical Preservation”, Sage Snider

Vanderbilt Journal of Entertainment & Technology Law

Confederate monuments have become lightning rods across the American landscape. While these ubiquitous symbols have spread Lost Cause propaganda for over one hundred years, they have also instigated unprecedented protest and violence since the 2015 Charleston massacre, 2017 Charlottesville rally, and 2020 George Floyd murder. In response, southern state legislatures have passed preemptory “statue statutes,” laws that obstruct left-leaning cities from removing Confederate monuments. This Note compares the political and legal strategies cities and citizens have used to overcome these legal barriers, both in opposition to individual monuments and statue statutes themselves. Using Tennessee’s Historical Commission waiver process as a …

Denouncing The Revival Of Pre-Roe V. Wade Abortion Bans In A Post-Dobbs World Through The Void Ab Initio And Presumption Of Validity Doctrines, Nora Greene

American University Journal of Gender, Social Policy & the Law

The United States Supreme Court voted to overturn Roe v. Wade in a leaked draft of Dobbs v. Jackson Women’s Health Organization. Written by Justice Alito and joined by four of the other conservative justices, the decision describes Roe as “egregiously wrong from the start” and blatantly overrules the landmark holding and its prodigy, Planned Parenthood v. Casey. In their state codes, nine states—Alabama, Arizona, Arkansas Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin— have unrepealed criminal abortion bans enacted before Roe. These bans prohibit abortion at any point in pregnancy unless to preserve the life of the pregnant person …

Civil Rights Catch 22s, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

Whiteness As Contract, Marissa Jackson Sow

Law Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily  apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

The Civil Right To Belong: A Case Study On Immigrant Integration Of Muslim Students In Educational Institutions, Mamoona H. Siddiqui

Theses and Dissertations

Constitutional equal protection values serve as social integration policies for new Americans and generations that follow. They promise equal opportunity, fair treatment, protection from unlawful discrimination, and freedom to preserve cultural identities in their new communities. However, in times of national security crises and political polarization, the disjuncture in the way equal protection doctrines have been historically implemented often reflect deep-rooted inequities that impact underrepresented communities. American Muslims are one such community in which members have experienced anti-Muslim and anti-immigrant sentiment particularly after 9/11 and political polarization on immigration and civil rights policies. The study explores the equal protection doctrine …

Evolving Beyond Reasonable Accommodations Towards "Off-Shelf Accessible" Workplaces And Campuses, Karla Gilbride

American University Journal of Gender, Social Policy & the Law

One of the hallmarks of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in the workplace on the basis of disability, is that it defines “discrimination” to include “not making reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual with a disability.” This concept of reasonable accommodation was seen as innovative in two ways. It recognized that employers must sometimes take affirmative steps or make adaptations to afford individuals with disabilities an equal opportunity to apply for and perform jobs. And it identified the failure to take such affirmative steps as a type of …

The Visibility Trap, Kate Redburn

Faculty Scholarship

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, …

Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger

Articles

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …

Unraveling The Web Of Legal Protection: Race, Police Misconduct, And The Favorable Termination Rule, Jasmine Gonzales Rose, Caitlin Glass, Neda Khoshkhoo

Faculty Scholarship

The murder of George Floyd raised greater awareness of the pervasiveness of racialized police violence in the United States. Advocates, activists, and concerned policymakers have drawn attention to legal barriers that prevent accountability for police who kill and abuse Black, Indigenous, and other people of color (“BIPOC”), such as qualified immunity. However, the true extent of the legal system’s protections regarding racialized police misconduct remains unrecognized. A key example of this is the favorable termination rule, which many jurisdictions have interpreted as imposing an “indications-of-innocence” standard. This standard, in numerous instances, serves as a procedural loophole that prevents civil rights …

Ballots In An Unfamiliar Language And Other Things That Make No Sense: Interpreting How The Voting Rights Act Undermines Constitutional Rights For Voters With Limited English Proficiency, Abigail Hylton

William & Mary Bill of Rights Journal

This Note will argue that the current federal scheme for determining the baseline resources that a state must provide to voters with limited English proficiency is unconstitutional. Specifically, the Voting Rights Act neglects to require adequate translation and interpretation services for many voters with limited English proficiency. Such failure to adequately support this group of citizens throughout the election process effectively excludes them from the democratic process and deprives them of their constitutional right to vote. Whether this group of voters has access to translated materials currently hinges on the language they speak, their nationality, and their geographic location; the …

Bargaining For Integration, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of their employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, the scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique …

New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander

Northwestern University Law Review

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Scholarship

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …

"Agents Of Change" – Lessons Learned From The Nation’S First Undergraduate Civil Rights Advocacy Clinic, Kath E. Rogers, Olu K. Orange

Experiential Learning & Teaching in Higher Education

How can universities support their students in pursuing civil rights activism? In doing so, how can universities prioritize students from marginalized communities who are most affected by justice issues? This paper will explore lessons learned from the nation’s first civil rights clinic at the undergraduate level. Responding to the urgency of our time, the University of Southern California, Dornsife College, launched "Agents of Change: Civil Rights Advocacy Initiative” in January 2021 to support students in addressing civil rights challenges in the Los Angeles community. This paper will discuss the importance of the civil rights activism clinical model at the college …