Civil Rights and Discrimination Commons^™

Antisemitic Terrorism, J. Richard Broughton

Lewis & Clark Law Review

Recent surges in antisemitic activity—and antisemitic violence, in particular—have led increasingly to conversations about the connections between antisemitism and domestic terrorism. While the nexus between antisemitic violence and domestic terrorism has long been expressed in rhetorical terms, its connection in legal terms—notably, federal criminal law—has been more attenuated. This Article explores that connection and finds that existing federal criminal law requires rethinking: it is underinclusive and thus inadequate to fully capture and punish the threats posed by today’s domestic violent extremism, and particularly antisemitic violence. The Article surveys recent federal prosecution in cases involving actual or threatened antisemitic violence, and …

Politicizing Antisemitism Amidst Today’S Educational Culture Wars, Lili Levi

Lewis & Clark Law Review

The traditional narrative of American Jewry emphasizes American exceptionalism with respect to antisemitism. But there have been clear signs of a resurgence of public antisemitism in the United States even before the massive rise in antisemitic expression and incidents associated with the Israel-Hamas war of fall 2023.

One of the notable aspects of the rise and normalization of antisemitic expression is the deployment of antisemitism as a political tool. For example, in addition to Democrats and Republicans accusing each other of complicity in antisemitism, both federal policy since the Trump era and state antiantisemitism legislation have targeted campus antisemitism in …

Strictly Intersectional Scrutiny: A Recommendation For Transforming The Epc To Highlight Queer Black Women, Kayla M. Richardson

Undergraduate Honors Theses

The purpose of this thesis is to explore the interpretation of the Equal Protection Clause by the Supreme Court of the United States (SCOTUS) and how this interpretation can become more intersectional for Black queer women. This question is explored within the scope of two theoretical frameworks: Derrick Bell’s theory of interest convergence and Kimberlé Crenshaw’s theory of intersectionality. This project examines whether any factors compel SCOTUS to be more intersectional in its approach to the Fourteenth Amendment. Simultaneously, this study also considers what social contexts make SCOTUS more likely to focus on the interests of the oppressor, a demographic …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

Is The Women's Treaty A Paper Tiger? Indian Courts' Application Of The United Nations Treaty, Amanda L. Stephens

Faculty Articles

This Article examines whether the United Nations ("U.N.") Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW'), is a "paper tiger"-a law that seems powerful but is in fact weak and ineffectual. While some scholars question the Treaty's effectiveness based on statistical studies, others point to legal reforms in state parties as evidence of its success. Neither provides a nuanced middle ground by examining the CEDAW at a micro rather than a macro level. This Article fills this gap by conducting a qualitative analysis of 10 Indian judicial opinions. Specifically, the Article explores how the …

The Procedural Justice Industrial Complex, Shawn E. Fields

Indiana Law Journal

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

Editor's Note

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Preempting Red State Restrictions On The Use Of Fda-Approved Drugs In Gender-Affirming Care?, Lars Noah

UF Law Faculty Publications

Some observers recently have wondered whether actions by the U.S. Food and Drug Administration (“FDA”) could federally preempt increasingly common state restrictions on gender-affirming care, particularly prohibitions on the use of puberty blockers and cross-sex hormones in adolescent patients. In theory, such a legal strategy might sidestep the need to lodge increasingly unsuccessful challenges under the Fourteenth Amendment. The Supremacy Clause offers little assistance, however, in attempting to get around these state laws. Indeed, even if the FDA eventually approved such uses for currently marketed drugs, implied preemption doctrine as currently configured probably would not do the trick, though securing …

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

Articles

The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

The Government Speech Doctrine Ate My Class: First Amendment Capture And Curriculum Bans, Caroline Mala Corbin

Articles

Because of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.

Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government …

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 …

Fulfilling The Promise Of The Housing Choice Voucher Program: Blind Review As An Enforcement Method For Source-Of-Income Antidiscrimination Laws, Zachary Wakefield

Indiana Journal of Law and Social Equality

The housing choice voucher program (HCV) is one that provides subsidies to very low-income individuals. These subsidies allow recipients of the vouchers to pay thirty percent of their income out of pocket towards their rent, with the difference being paid by the subsidy from the government directly to a landlord. Although the program itself is federal, it is administered by the states at the local level. As with most housing in the United States, the Fair Housing Act protects HCV recipients from discrimination based on “race, color, religion, sex, familial status, or national origin,” regardless of the state where the …

Hemispheric Justice: Awakening To 303 Creative’S Troubles – A Glocalized Latcrit Analysis, Berta E. Hernández-Truyol

UF Law Faculty Publications

In this essay, I will first describe and critique 303 Creative, a 2023 Supreme Court decision that subordinates LGBTQIA+ equality and nondiscrimination rights to an imagined intrusion into the free speech rights of a Christian business owner. Based upon her religious beliefs, the business owner claimed that Colorado’s public accommodations law, which prohibited discrimination based upon sexual orientation or gender identity (among other categories), violated her rights because it mandated that she serve the LGBTQIA+ community. Next, this essay shares insights from the recent Awakened decisions of Inter-American Human Rights institutions to demonstrate a path towards achieving justice for …

Second-Tier Marriages, Jeremiah A. Ho

All Faculty Scholarship

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now "on the books," the Supreme Court's treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n and 303 Creative LLC v. Elenis reveals the status quo's hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court's LGBTQ …

The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, And Need (Especially In Post-Dobbs America), Deborah Widiss

Articles by Maurer Faculty

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such …

The "New" Drug War, Jennifer D. Oliva, Taleed El-Sabawi

Articles by Maurer Faculty

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

Medical Taking Of Human Biological Material V. Traditional “Art Looting”: Henrietta Lacks And The Complex Ethical And Legal Liability Questions Raised By Her Unfortunate Case, Alyaa Chace

Touro Law Review

During a poignant saga of American history, Henrietta Lacks stands as an emblem of both scientific triumph and ethical controversy. In 1951, Mrs. Lacks, a tobacco farmer and mother of five, visited Johns Hopkins Hospital for treatment of what was later discovered to be advanced stage cervical cancer. Her doctors treated her with radium, which was standard practice at the time. However, Mrs. Lacks’s cancer rapidly metastasized and she ultimately passed away just months later on October 4, 1951, at the age of 31. During the course of her treatment, Mrs. Lacks’s cells were non-consensually removed for purposes of scientific …

Mental Hygiene Law Article 81 Proceedings In New York State And The Associated Deprivation Of One’S Civil Rights And Autonomy: Are We Really Helping?, Giulia R. Marino

Touro Law Review

New York State Mental Hygiene Law Article 81 affords a population that is vulnerable to abuse and exploitation an opportunity to have their personal and/or property management needs met by the least restrictive means available, often entailing a severe deprivation of their rights.1 But what is meant by the term “least restrictive means available,” how is this determined, and how are these “means” implemented and monitored? Is this deprivation of an individual’s rights the only way they can be helped, or is this unnecessarily harmful? Are there other ways to protect the vulnerable in our society without taking away these …

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

Mental Health Education Law: A Statutory Shift Of Responsibility To K-12 Students?, Henry Yat-Shing Kwan

Public Interest Law Reporter

No abstract provided.

Foreword, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

No abstract provided.

Channeling A Federal Commitment To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Journal of Race, Gender, and Ethnicity

This article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation …

Leandro V. State: The Challenges Of Litigating School Funding Equity In Hyper-Partisan Times, Mark Dorosin

Journal of Race, Gender, and Ethnicity

The Leandro case serves as a critical case study highlighting the limitations of litigation in addressing educational inequities, particularly in states committed to undermining public education. Despite the judiciary's constitutional role as an independent check on legislative actions, the politicization of state supreme courts has transformed them into partisan entities. This shift erodes public trust in the legal process and disproportionately harms marginalized groups, many of whom have historically relied on the courts to safeguard their constitutional rights, including equitable access to public education. The Leandro case underscores the challenges of achieving meaningful educational reform through litigation in a highly …

Protecting Students’ Right To Listen By Statute, Noah C. Chauvin

Journal of Race, Gender, and Ethnicity

This article argues that First Amendment challenges to book bans in public school libraries, based on the right to receive information, are unlikely to succeed. Even if such bans clearly violate students' rights, constitutional litigation is slow and unpredictable, and courts may not consistently support these challenges. Therefore, instead of relying solely on litigation, opponents of book bans should pursue legislative change. The paper proposes a model statute that advocates and legislators can use to ban book bans. It also acknowledges the complexities of terminology and scope, defining "book bans" as decisions to restrict or remove materials from school libraries, …

Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas

Journal of Race, Gender, and Ethnicity

This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …

Externships For Equity, Lauren K. Valastro

Journal of Race, Gender, and Ethnicity

This article examines the crucial role of externships in improving employment outcomes for marginalized law students, who often face systemic barriers to success in the legal field. Despite advancements, these students continue to have lower employment rates after graduation, largely due to institutional failures. Externships offer a low-cost, high-impact opportunity for students to gain the competencies employers seek, thus significantly enhancing their chances of securing employment. By analyzing data, the essay highlights the positive effect of externships on marginalized students' hiring outcomes. It also addresses broader questions on how legal employers evaluate candidates and proposes that expanding and supporting externship …