Civil Rights and Discrimination Commons^™

The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati

Faculty Scholarship

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …

Cultivating Inclusion, Patrick S. Shin, Mitu Gulati

Faculty Scholarship

In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at …

A Difficult Conversation: Corporate Directors On Race And Gender, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome

Faculty Scholarship

This symposium essay summarizes our ongoing ethnographic research on corporate board diversity, discussing the central tension in our respondents’ views – their overwhelmingly enthusiastic support of board diversity coupled with an inability to articulate coherent accounts of board diversity benefits that might rationalize that enthusiasm. As their reactions make clear, frank dialogue about race and gender – even a seemingly benign discussion of diversity’s benefits – can be a difficult conversation.

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Objectivity: A Feminist Revisit, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

What We Disagree About When We Disagree About School Choice, Aaron J. Saiger

Faculty Scholarship

The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the …

To Be Male: Homophobia, Sexism, And The Production Of “Masculine” Boys, Clifford Rosky

Utah Law Faculty Scholarship

This chapter is about the relationship between homophobia and sexism in family law. By conducting an empirical analysis of custody and visitation cases, it shows that stereotypes about the children of lesbian and gay parents are both sexist and homophobic. In some cases, the relationship between homophobia and sexism becomes especially obvious, when stereotypes explicitly conflate the sexual orientation, gender identity, and gender roles of children and parents. By looking more closely, however, we can find more subtle evidence of this relationship in a much wider range of cases, wherever stereotypes of the children of lesbian and gay parents appear. …

The Case Of Dixon V. Alabama: From Civil Rights To Students' Rights And Back Again, Philip Lee

Journal Articles

On February 25, 1960, African American students from Alabama State College participated in a sit-in at a segregated lunch grill at the Montgomery County Courthouse. The lunch grill refused to serve the students and ordered them to leave. The students left and went to the courthouse corridor, where they remained for an hour before going back to campus.

When Alabama State College learned of the students’ actions, it summarily expelled them without notice or hearing. In expelling the students, the college relied on Alabama State Board of Education regulations that allowed it to expel students for “conduct unbecoming a student …

Narrowing The Gender Pay Gap By Providing Equal Opportunities: The Need For Tenured Female Professors In Higher Stem Institutions In An Effort To Recast Gender Norms, Claire R. Rollor

Student Articles and Papers

No abstract provided.

Following Fisher: Narrowly Tailoring Affirmative Action, Eang Ngov

Faculty Articles

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic based …

The End Of Indeterminacy In Affirmative Action, Carla D. Pratt

Valparaiso University Law Review

No abstract provided.

Delimiting Title Vii: Reverse Religious Discrimination And Proxy Claims In Employment Discrimination Litigation, Andrea J. Sinclair

Vanderbilt Law Review

In July 2012, Chick-fil-A President and Chief Operating Officer Dan Cathy remarked to a religious publication that he and his company supported the "biblical definition of the family unit."' Chick- fil-A is popularly known as a Christian company that promotes conservative, biblical values. Mr. Cathy's statement was largely interpreted by the media as an "anti-gay" sentiment rooted in religious beliefs. In response to Mr. Cathy's remark, government officials from Boston and Chicago refused to allow the restaurant chain to open new locations in their cities, citing the organization's official policy of "discrimination." The Chick-fil-A controversy demonstrates how the intersection of …

Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang

Faculty Articles and Papers

Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …

Revealing The Race-Based Realities Of Workforce Exclusion, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to …

The Intertwined Fates Of Affirmative Action And The Military, Robert Knowles

Loyola University Chicago Law Journal

This Article explores the deep connections between the crises facing the military and affirmative action. The military struggles with a sexual assault epidemic and a related failure to achieve gender and racial equality, both of which undermine its ability to effectively carry out its mission. Affirmative action faces growing skepticism from the American public and from the courts, which have been gradually eliminating the ground on which gender- and race-conscious measures can be constitutionally justified.

In this time of crisis for both, the military and affirmative action need each other like never before. Affirmative action needs the military to tell …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

Technology, Alienation, And The Future Of Litigation-Based Social Change, Dana Neacsu

Law Faculty Publications

This article addresses the apparent inconsistency of the impact technology has on the "rights vocabulary." It theorizes how, in certain circumstances, it erodes this progressive vocabulary by making it and the subsequent judicial litigation superfluous.

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

"Not Without Political Power": Gays And Lesbians, Equal Protection, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs. A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

UF Law Faculty Publications

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Cleveland State Law Review

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animusfocused jurisprudence for lifting the discrimination against the …

The Many Lanes Out Of Court: Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Law Faculty Scholarship

Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts' inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants …

The Trouble With Torgerson: The Latest Effort To Summarily Adjudicate Employment Discrimination Cases, Theresa M. Beiner

Law Faculty Scholarship

No abstract provided.

A Lawyer Looks At Civil Disobedience: How Lewis F. Powell, Jr. Reframed The Civil Rights Revolution, Anders Walker

All Faculty Scholarship

This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. …

Undoing Race? Reconciling Multiracial Identity With Equal Protection, Lauren Sudeall Lucas

Faculty Publications By Year

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition …

Retaliation In An Eeo World, Deborah L. Brake

Indiana Law Journal

This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies …

Love And Civil Rights, Ediberto Román

Faculty Publications

Despite western legal scholars' almost universal rejection of the use of emotions in legal analysis, the unquestionable greatest social activist and grassroots legal reformer of our times, and perhaps one of the greatest in the annals of time, Rev. Dr. Martin Luther King, understood a basic yet profound fact concerning societal change - the transformative power of love. During the era where he achieved the greatest influence, Dr. King knew that societal-wide change could not occur without transforming the American psyche on the basic fairness of the civil rights struggle. This civil rights struggle, which is now so closely associated …

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Articles

A popular and intuitively plausible argument for the rights of lesbians, gay men and bisexuals (LGB people) focuses on the claim that sexual orientations are inborn and/or unchangeable. This argument draws on three sources: ethical, scientific, and legal. The scientific source is the widely held observation that people generally (and LGB people particularly) do not choose their sexual orientation. This observation is buttressed by claims about the causes and character of human sexuality. The ethical source is the general intuition that people should not be punished for something that they did not choose. Together, these ethical and scientific beliefs lead …