Civil Rights and Discrimination Commons^™

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

Publications

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

Uncovering Identity, Paul Horowitz

Michigan Law Review

This Review raises several questions about Yoshino's treatment of identity, authenticity, and the "true self' in Covering. Part I summarizes Yoshino's book and offers some practical criticisms. Section II.A argues that Yoshino's treatment of authenticity and identity leaves much to be desired. Section II.B argues that Yoshino's focus on covering as an act of coerced assimilation fails to fully capture the extent to which one's identity, and one's uses of identity, may be fluid and deliberate. Section II.C focuses on another identity trait that runs through Yoshino's book, always present but never remarked upon: those aspects of identity and …

The Genetic Information Nondiscrimination Act Of 2008: History, Successes, And Future Considerations, Christine Formas Norris

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Friday Night Lite: How De-Racialization In The Motion Picture Friday Night Lights Disserves The Movement To Eradicate Racial Discrimination From American Sport, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Michigan Journal of Race and Law

This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …

The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker

Michigan Journal of Race and Law

The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of …

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

All Faculty Scholarship

A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Mission Accomplished?, Ellen D. Katz

Articles

My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly I. Moran, Stephanie M. Wildman

Vanderbilt Law School Faculty Publications

Many believe that the legal system has achieved racial neutrality because statutes and regulations do not mention race. They do not view law and the legal system as one way that American society polices race and wealth disparities. Because American law seems removed from race and wealth concerns, legal workers see no place for such considerations in their education or practice.

Although the legal system has aspired to neutrality and equality, racialized wealth inequality has resulted and continues. This article considers the aspiration and shows how equality and neutrality can veil existing wealth inequality. Using examples from judicial decisionmaking and …

The Possibility Of Avoiding Discrimination: Considering Compliance And Liability, Melissa Hart

Publications

The gender discrimination class action Dukes v. Wal-Mart Stores, Inc., whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

ExpressO

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

The Impact Of "Chartervalues" And Campbell V. Jones: Is It Now Easier To Establish Qualified Privilege Against Defamation?, Geoffrey Duckworth

Dalhousie Law Journal

The purpose of this case comment is to impel a discourse on whether Campbell v. Jones' has "loosened the test" on qualified privilege. In the aftermath of the Court ofAppeal decision, it might be tempting to suggest that Campbell v. Jones means that the defence of qualified privilege is being re-fabricated in light of the advent of the Charter of Rights and Freedoms, in order to take an expanded account of "Charter values" such as freedom of expression. This case comment adopts the contrary view, and asserts that what Campbell has really done is clarify exactly which type of extraordinary …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

Second-Class Citizens: Jews, Freedom Of Speech, And Intolerance On Canadian University Campuses, Stefan Braun

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

I'M Confused: How Can The Federal Government Promote Diversity In Higher Education Yet Continue To Strengthen Historically Black Colleges?, Sean B. Seymore

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Inside The Outsider: Critical Race Theory Against Human Rights?, Eric Heinze

ExpressO

This article examines disturbing contradictions within critical race theory. Critical race theorists, such as Mari Matsuda, Richard Delgado, or Charles Lawrence, maintain that legal norms cannot be taken at face value, but must instead be understood in historical and social context. For example, the Fourteenth Amendment was adopted to guarantee ‘equal protection of the law’ to all citizens. However, on its face, that norm reveals little about the brutality and exclusion that ethnic minorities subsequently experienced, often with the complicity of legislatures and courts.

Matsuda applies that analysis to hate speech in the 1993 collection Words That Wound, which remains …

Reading, Writing, And Reparations: Systematic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Faculty Articles and Other Publications

This Article examines reparations as a means of supporting systemic reform of public education, focusing on a recent enactment of the Virginia General Assembly, the Brown v. Board of Education Scholarship Program and Fund (Brown Fund Act). This provision seeks to remedy the state's refusal to integrate schools after the Supreme Court's decision in Brown v. Board of Education by providing scholarships to persons denied an education between 1954 and 1964, a period known as massive resistance. Under this regime, the state's executive and legislative branches colluded to develop laws that defied Brown's mandate, including authorizing the governor to close …

Equal Protection - Florida's Disenfranchisement Law: Appellate Court Affirms Decision Finding Disenfranchisement Provision Does Not Violate Constitution - Johnson V. Governor Of The State Of Florida, Et. Al., 405 F.3d 1214 (11th Cir. 2005), Arthenia L. Joyner

Florida A & M University Law Review

No abstract provided.

The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black

Faculty Publications

This Article highlights the inherent ambiguities of racial antidiscrimination’s core legal language: “equal protection under the law” and “discrimination based on race.” It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court’s standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection’s meaning, the standard lacks any basis …

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Michigan Journal of Race and Law

This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain …

Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch

Cleveland State Law Review

This article will explore the Federal Rules of Civil Procedure and their application in the granting or denial of certification in an employment discrimination class action. In doing so, this article will examine how the district court applied these rules in the Wal-Mart action, which resulted in the certification of the largest private class action suit in American history. Additionally, this article will consider the consequences of the Ninth Circuit's utilization of permissive and liberal standards and, alternatively, the consequences of incorporation of stricter standards from various other circuit courts and the possible result of denial of certification.

Discrimination Cases In The October 2004 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.