Civil Rights and Discrimination Commons^™

Same-Sex Marriage Litigation And Children's Right To Be Queer, Clifford Rosky

Utah Law Faculty Scholarship

This essay examines how lawyers and judges have framed the question of children’s queerness in litigation over samesex marriage. First, it argues that in United States v. Windsor and Obergefell v. Hodges, the US Supreme Court invoked the tropes of dignity, injury, and immutability to set the outer limits of sexual liberty for both children and adults. Next, the essay looks back to the early work of queer theorists, legal scholars, and lawyers to unearth a more promising vision of law’s relationship to children’s queerness. By juxtaposing how two judges approached the possibility of the gay child in Utah and …

Scrutinizing Immutability: Research On Sexual Orientation And U.S. Legal Advocacy For Sexual Minorities, Clifford Rosky, Lisa M. Diamond

Utah Law Faculty Scholarship

We review scientific research and legal authorities to argue that the immutability of sexual orientation should no longer be invoked as a foundation for the rights of individuals with same-sex attractions and relationships (i.e., sexual minorities). On the basis of scientific research as well as U.S. legal rulings regarding lesbian, gay, and bisexual (LGB) rights, we make three claims: First, arguments based on the immutability of sexual orientation are unscientific, given what we now know from longitudinal, population-based studies of naturally occurring changes in the same-sex attractions of some individuals over time. Second, arguments based on the immutability of sexual …

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing, Mae C. Quinn

Journal Articles

No abstract provided.

"Other Than Honorable" Discrimination, Marcy L. Karin

Journal Articles

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …

The Shelby County Problem, Ellen D. Katz

Book Chapters

Decided on June 23, 2013, Shelby County v. Holder scrapped the coverage formula set forth in Section 4(b) of the Voting Rights Act (VRA). Congress first enacted this formula in 1965 and, in it, set forth criteria to identify places with low levels of voter participation that was likely attributable to racial discrimination. Once identified, "covered" jurisdictions needed to obtain federal approval, known as preclearance, before changing any electoral practice. Specifically, they needed to demonstrate to the U.S. Department of Justice or a federal court that proposed changes were not discriminatory in purpose or effect. Shelby County lifted the preclearance …

Address: The Civil Rights Approach To Campus Sexual Violence, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Jim Crow Effect: Denial, Dignity, Human Rights, And Racialized Mass Incarceration, 29 J. Civ. Rts. & Econ. Dev 15 (2016), Cecil J. Hunt Ii

UIC Law Open Access Faculty Scholarship

The overarching theme of this paper is that the racialization of mass incarceration in America, which has been taking place since the latter part of the last century, and continues to this very day, is characterized by what I term, the “Jim Crow effect".

What We Know And Need To Know About Veteran Access To Justice, Elizabeth Chambliss

South Carolina Law Review

No abstract provided.

Half-Baked: The Demand By For-Profit Business For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Law Faculty Scholarly Articles

Should bakers be required to make cakes for same-sex weddings? With the announcement of a constitutional right to same-sex marriage in Obergefell, one of the next confrontations in the struggle for expanded equality will involve the demand for religious exemptions from nondiscrimination laws in the public marketplace. The present discussion unravels the eclectic arguments that are repeatedly offered in support of such an exemption. The initial feint invokes a fundamental right to exclude, which fails for two reasons. First, the right to exclude is a fundamentally racist rule devised to prevent African-Americans from participating in free society. Rather than attempt …

Keynote Remarks, Vanita Gupta

Michigan Journal of Race and Law

In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the …

Police Impunity In Mexico: Creating Openings For Justice In A New Democracy, Emily Boyce

Honors Theses

In this project, I investigate why police impunity has persisted in Mexico, and why the application of justice, when it does occur, happens unequally. Mexico has undergone a democratic transition with a specific focus on increasing accountability in the judiciary. These persistent trends of police impunity and unequal application of justice are especially puzzling in the face of these recent shifts. Existing literature argues that the institutional changes that occur as a result of democratization should yield changes that further the individual rights of citizens. A majority of the scholarly work regarding police impunity and justice in Mexico focuses on …

Contested Citizenship In Bosnia And Herzegovina, Elena Cirkovic

Osgoode Legal Studies Research Paper Series

According to Article 15 of the Universal Declaration of Human Rights (UDHR), the right to nationality and citizenship can be considered as a universal human right: ‘(1) everyone has the right to nationality’ and ‘(2) no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. However, the qualifications of the bearer of ‘universal’ rights are unspecified. Equating nationality with citizenship has contributed to a situation where people(s) have to fit the category of being a ‘national’ in order to obtain citizenship. The question of access to national and international rights remains the question …

The Global Struggle For Lgbtq Rights: Legal, Political, And Social Dimensions, Macarena Saez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Effective Litigation Strategies To Improve State Education And Social Service Systems, Albert H. Kauffman

Faculty Articles

Texas border area Latino plaintiffs brought state court litigation, the Lulac case, to improve higher education opportunities in the Texas- Mexico borderlands. Plaintiffs successfully parlayed their trial court judgment into a massive influx of resources and permanent improvement in higher education in the Texas border. The Article describes the history of the Lulac case and includes an original analysis of the improvement of higher education in the Texas border area. The Article then develops a model for the successful integration of litigation, legislation, public advocacy and community involvement, and applies this model to the Lulac case and the Texas school …

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …

Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance

UF Law Faculty Publications

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately …

Black Boys Matter: Developmental Equality, Nancy E. Dowd

UF Law Faculty Publications

The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.

The life course of …

The Dynamics Of Excessive Force, Daria Roithmayr

Publications

No abstract provided.

"Lord Forgive Me, But He Tried To Kill Me": Proposing Solutions To The United States’ Most Vexing Racial Challenges, André Douglas Pond Cummings

Law Faculty Scholarship

While great progress has been made in the United States in the past fifty years in connection with race relations, three critical issues continue to vex our nation. The United States, despite its progress, continues to struggle mightily with (a) the police killing of unarmed black men; (b) racially disproportionate mass incarceration; and (c) violent homicides of black men and boys. Nightly newscasts detail seemingly weekly killings of unarmed African American men by law enforcement officers. Mass incarceration, while plateauing in the last several years, continues to see millions of United States citizens incarcerated at rates unmatched by any other …

Unifying Antidiscrimination Law Through Stereotype Theory, Stephanie Bornstein

UF Law Faculty Publications

Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations.

Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role …

Race Based Medicine, Color Blind Disease: How Racial Preferences In Violation Of The 14th Amendment Are Killing Us All, Ruqaiijah Yearby

All Faculty Scholarship

Disease is color blind, but medicine is not. For example, sickle cell disease is often discussed in terms of a Black disease; however, people of all different races suffer from sickle cell. Moreover, sickle cell is found in a number of places that have little to no Blacks, such as Afghanistan, Bangladesh, Burma, and Honduras. Nevertheless, health care providers often provide people of different races different levels of care justifying their disparate treatment based on scientific claims. However, not only are these scientific claims baseless, but also the explicit use of race to determine what medical treatment is provided patients …

Integrate And Reactivate The 1968 Fair Housing Mandate, Courtney L. Anderson

Faculty Publications By Year

No abstract provided.

Cross-Sectional Challenges: Gender, Race, And Six-Person Juries, Jeannine Bell, Mona Lynch

Articles by Maurer Faculty

After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors’ race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors’ decision …

Race, Restructurings, And Equal Protection Doctrine Through The Lens Of Schuette V. Bamn, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

Hanging In The Balance: The Rights Of Religious Minorities, Faisal Bhabha

Articles & Book Chapters

No abstract provided.

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Rethinking Employment Discrimination Harms, Jessica Roberts

Indiana Law Journal

Establishing harm is essential to many legal claims. This Article urges the law to adopt a more expansive notion of the harms of employment discrimination to better reflect the cognitive functions of individuals who face discrimination. While the effect of implicit bias on the mental state of potential discriminators is well-worn territory in antidiscrimination scholarship, little has been written about a sister theory: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that …

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …