Civil Rights and Discrimination Commons^™

"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell

Michigan Journal of Race and Law

This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …

Diversity's Strange Career: Recovering The Racial Pluralism Of Lewis F. Powell, Jr., Anders Walker

All Faculty Scholarship

Though diversity remains a compelling state interest, recent rulings like Ricci v. DeStefano and Parents’ Involved toll a menacing bell for schools employing racial classifications to admit minority students. Yet, defenders of diversity may find refuge in original meanings, particularly the original meaning of diversity as articulated by Justice Lewis F. Powell, Jr. in Regents v. Bakke in 1978. Virginian by birth, Powell’s interest in “genuine diversity” coincided with a forgotten version of pluralism extant in the American South during thefirst half of the Twentieth Century. Further, Powell’s conviction that diversity distinguished America coalesced during a trip to the Soviet …

Equality And Sorority During The Decade After Brown, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desgregation In Dallas, Texas, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform litigation a judicial relic. Part II examines the historical development of institutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post-Brown v. Board of Education era and contrasts those cases with Judge Sanders's rulings on …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane

All Faculty Scholarship

The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory …

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

Publications

This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

Addressing Segregation In The Brown Collar Workplace: Toward A Solution For The Inexorable 100%, Leticia M. Saucedo

University of Michigan Journal of Law Reform

Despite public perception to the contrary, segregated workplaces exist in greater number today than ever before, largely because of the influx of newly arrived immigrant workers to low-wage industries throughout the country. Yet existing antidiscrimination frameworks no longer operate adequately to rid workplaces of the segregation that results from targeting immigrant workers. This Article suggests a new anti-discrimination framework to address workplace segregation. The Article reviews how litigants have attempted to rid the workplace of conditions resulting from segregated departments through existing anti-discrimination frameworks. It then suggests a simple, yet powerful, shift in the inferences that can be drawn from …

The "Trial Of The Century" That Never Was: Staff Sgt. Macario Garcia, The Congressional Medal Of Honor, And The Oasis Cafè, Michael A. Olivas

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Pauli Murray's Campaign Against Harvard Law School's "Jane Crow" Admissions Policy, Mary Elizabeth Basile

Journal of Legal Education

No abstract provided.

The Fair Housing Act And Extralegal Terror, Jeannine Bell

Articles by Maurer Faculty

This Article examines the implications the Fair Housing Act (FHA) has on anti-integrationist racial violence faced by racial and ethnic minority's integrating white neighborhoods. The first part of the article describes anti-integrationist violence as it occurs in two separate but distinct time periods the first occurring, before the passage of the FHA. The second time period that article addresses is the post-1968 era until the present day. In discussing the period since the passage of the Act, the article describes several important mechanisms in how the FHA functions as a remedy for extralegal violence. The Article concludes with a call …

The Little Rock School District's Quest For Unitary Status, Honorable Robert L. Brown

University of Arkansas at Little Rock Law Review

This essay discusses the major judicial benchmarks affecting the Little Rock School District since Brown v. Board of Education, andl additionally touches on attitudinal stumbling blocks between the races where problems continue to arise and where suspicions run deep.

After some forty years of litigation the Little Rock School District has been declared unitary in all respects by the Federal District Court for the Eastern District of Arkansas. There are judicial benchmarks since Brown and three cases bear mentioning. The initial focus of the essay is on the unitary-status decisions handed down by the Federal District Court, and specifically by …

Civil Rights Act Of 1964, Henry L. Chambers, Jr.

Law Faculty Publications

The Civil Rights Act of 1964 (42 U.S. C.A.) (the 19 Act) likely has had the greatest transformative effect on American society of any single law. By prohibiting discrimination based on race, color, sex, religion, a national origin in places of public accommodation, in federally assisted programs, in employment, in schools and with respect to voting rights, this massive law has had profound effects on almost every facet of American society.

Cox, Halprin, And Discriminatory Municipal Services Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article deals with Cox v. City of Dallas, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, and the issue of whether the Federal Fair Housing Act (FHA) should be interpreted to outlaw discrimination in the provision of services by local governments. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyzes the FHA's relevant provisions and their legislative history and concludes that Cox and Halprin were wrong to deny FHA protection to current residents. Part IV …

The Current State Of Residential Segregation And Housing Discrimination: The United States' Obligations Under The International Convention On The Elimination Of All Forms Of Racial Discrimination, Michael B. De Leeuw, Megan K. Whyte, Dale Ho, Catherine Meza, Alexis Karteron

Michigan Journal of Race and Law

The United States government accepted a number of obligations related to housing when it ratified the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). For example, the United States government must ensure that all people enjoy the rights to housing and to own property, without distinction as to race; cease discriminatory actions, including those that are discriminatory in effect regardless of intent; and take affirmative steps to remedy past discrimination and eradicate segregation. This Article discusses the United States government's compliance with those obligations, as well as the importance of meaningful compliance in maintaining the United …

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Race-Conscious Student Assignment Plans After Parents Involved: Bringing State Action Principles To Bear On The De Jure/De Facto Distinction, Michael Wells

Scholarly Works

In Parents Involved in Community Schools v. Seattle School District No. 1, a sharply divided Supreme Court struck down two race-conscious school assignment plans aimed at achieving greater racial integration of the public schools. Taking Parents Involved as a starting point, this Article looks ahead to the future of litigation over student assignment plans. By striking down the Seattle and Louisville plans, the decision may "require hundreds of school districts to rethink race-based policies that they use voluntarily to desegregate schools." At the very least, the 5-4 ruling almost certainly did not put an end to race-conscious integration plans or …

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

Articles

This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

Moving Beyond Strict Scrutiny: The Need For A More Nuanced Standard Of Protection Analysis For K Through 12 Integration Programs, Deborah N. Archer

Articles & Chapters

In Comfort v. Lynn School Committee, the United States Court of Appeals for the First Circuit evaluated a race-conscious student assignment program using the affirmative action strict scrutiny framework of Grutter v. Bollinger. Comfort is part of a trend of applying strict scrutiny to race-conscious integration programs that has gained new momentum following the decision in Grutter. Invited by the Supreme Court's seemingly unequivocal language in Adarand Constructors v. Pena, that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," federal district and appellate courts confronted with …

Why The Supreme Court Lied About Plessy, David S. Bogen

Faculty Scholarship

This article examines the citation in Plessy of a dozen cases that the Court said held racial segregation statutes in transport to be constitutional. It argues that none of those twelve cases upheld a segregation statute, but were largely decisions upholding decisions by the carrier under the common law. Justice Brown knew that the cases did not uphold segregation statutes, but he went ahead and used them to bury opposition under the weight of precedent. He knew that he was unlikely to be challenged, and he believed that the common law and the Constitution involved the same principles. The conflation …

Race Discrimination And Human Rights Class Actions: The Virtual Exclusion Of Racial Minorities From The Class Action Device, George A. Martinez

Faculty Journal Articles and Book Chapters

In the era of Jim Crow, racial minorities were segregated and excluded from participating in white society. Minorities were segregated in public schools, excluded from public accommodations, excluded from participation on juries, and excluded from living in certain areas. Harkening back to that earlier time, racial minorities now are often excluded from using the class action device to bring civil rights claims.

This paper argues that courts are very tough in how they handle class certification decisions in race discrimination class actions. On the other hand, the courts are quite lenient in how they handle class certification decisions in human …

Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

Hate Thy Neighbor, Jeannine Bell

Articles by Maurer Faculty

This Article addresses one of the consequences of racial segregation in housing - violence and intimidation directed at minorities who are integrating white neighborhoods. In describing the history and dynamics of this type of anti-integrationist crime, the Article seeks to offer an introduction to the setting of hate crimes in a neighborhood context. The Article provides a critical bridge between hate crime law and housing law, exploring the substantial difficulties when each of these legal remedies is used to combat this type of violence. The Article concludes by offering a series of solutions uniquely crafted to combat the problem of …

The Sweet Trials: An Account, Douglas O. Linder

Faculty Works

The automobile and manufacturing boom that began in Detroit about 1915 made the city a magnet for blacks fleeing the economic stagnation of the South. In the decade from 1915 to 1925, Detroit's black population grew more than tenfold, from 7,000 to 82,000. A severe housing shortage developed, as the city's compact black district could not accommodate all the new arrivals. Blacks brave enough to purchase or rent homes in previously all-white neighborhoods faced intimidation and violence. The spring and summer of 1925 saw several ugly housing-related incidents. It was in this violent summer of 1925 that a black doctor …

The 2006 Winthrop And Frances Lane Lecture: The Unintended Legal And Policy Consequences Of The No Child Left Behind Act, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Interracial Marriage In The Shadows Of Jim Crow: Racial Segregation As A System Of Racial And Gender Subordination, Reginald Oh

Law Faculty Articles and Essays

This Essay works through essentialist language to reveal the multidimensional nature of racial segregation as a system of subordination. Specifically, it examines how racial segregation in public schools and laws prohibiting interracial marriage mutually reinforce racial and gender inequality. Part I discusses Brown and the traditional analysis of that decision as a case dealing with race, racial stigma, and equal educational opportunity. Part II reviews laws prohibiting interracial marriage, the reasoning and purpose behind these laws, and the Loving decision that rendered such laws unconstitutional. Part III then examines racial segregation in public schools as more than just a system …

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.

Separate And Unequal Care In New York City, Neil S. Calman, Maxine Golub, Charmaine Ruddock, Lan Le

Journal of Health Care Law and Policy

No abstract provided.

A History Of Hollow Promises: How Choice Juisprudence Fails To Achieve Educational Equality, Anita F. Hill

Michigan Journal of Race and Law

This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms …