Civil Rights and Discrimination Commons^™

Workers Disarmed: The Campaign Against Mass Picketing And The Dilemma Of Liberal Labor Rights, Ahmed A. White

Publications

In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but …

Health Care, Title Vi, And Racism's New Normal, Dayna Bowen Matthew

Publications

No abstract provided.

Reframing The Civil Rights Narrative: From Compliance To Collective Impact, Susan P. Sturm

Faculty Scholarship

This chapter first analyzes the limits of the civil rights/compliance framework as an overarching change theory for transforming institutions and systems, and then sketches out the features of a full participation framework grounded in a collective-impact approach to reducing structural inequality. Full participation is a framework that nests antidiscrimination within an affirmative vision connected to a theory of action, and a methodology aimed at systems change. It resonates with a wide range of emerging scholarship and activism aimed at advancing equality under conditions of complexity, changing demographics, decentered governance, privatization, and technological change. The framework draws on insights from extensive …

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel, Maritza I. Reyes

Journal Publications

No abstract provided.

Post-Racial Proxy Battles Over Immigration, Mary D. Fan

Chapters in Books

Amid economic and political turmoil, anti-immigrant legislation has flared again among a handful of fiercely determined states. To justify the intrusion into national immigration enforcement, the dissident states invoke imagery of invading hordes of “illegals”—though the unauthorized population actually fell by nearly two-thirds, decreasing by about a million people, between 2007 and 2009 as the recession reduced the lure of jobs.

Arizona’s Senate Bill 1070—recently invalidated in part by the U.S. Supreme Court in Arizona v. United States—led the charge. By preelection-year summer 2011, several states enacted laws patterned after Arizona’s controversial Senate Bill 1070, including Alabama’s even more aggressive …

Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez

Faculty Scholarship

During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. Conservative pundit Rush Limbaugh and many others railed against her nomination, proclaiming on talk radio broadcasts from coast-to-coast that she is a reverse-racist and nothing less than anti-white. A review of the Supreme Court record of race-related cases demonstrates Justice Sotomayor’s continued commitment to her stated judicial philosophy of fidelity to the law, inasmuch as she has not sought the unilateral imposition of her own personal racial policy preferences but has instead worked as a team player to scrupulously apply legal …

One Path For ‘Post-Racial’ Employment Discrimination Cases—The Implicit Association Test Research As Social Framework Evidence, Tanya K. Hernandez

Faculty Scholarship

Today’s legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that law should be engaged in addressing. Within the employment discrimination context the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Yet, given the powerful societal conviction in a “post-racial” American narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs present a …

Dr. Seuss’S (Un)Civil Imaginaries, Donald E. Pease

NYLS Law Review

No abstract provided.

The Sneetches As An Allegory For The Gay Rights Struggle: Three Prisms, Peter Nicolas

NYLS Law Review

No abstract provided.

Forms Of Affiliation: Family, Democracy, And Civil Society In Horton Hears A Who!, Naomi Mezey, Gabe Lezra

NYLS Law Review

No abstract provided.

International Law, Armed Conflict, And The Construction Of Otherness: A Critical Reading Of Dr. Seuss’S The Butter Battle Book And A Renewed Call For Global Citizenship, John Hursh

NYLS Law Review

No abstract provided.

Is The Butter Battle Book’S Bitsy Big-Boy Boomeroo Banned? What Has International Law To Say About Weapons Of Mass Destruction?, Roger S. Clark

NYLS Law Review

No abstract provided.

Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson

University of Michigan Journal of Law Reform

Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

Marriage Equality And One Original Principle Of Religious Liberty, Harry F. Tepker

Faculty Articles

No abstract provided.

We The People: Each And Every One, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” and “higher-lawmaking.” In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

A Life In The Law: An Interview With Drew Days, Rodger D. Citron

Touro Law Review

Drew S. Days, III, has lived an extraordinary life in the law. Born in the segregated South, Days graduated from Yale Law School in 1966 and pursued a career as a civil rights lawyer. In 1977, he was appointed Assistant Attorney General for Civil Rights. After his stint in the administration of President Jimmy Carter, Days became a professor at Yale Law School. Then, in 1993, he was appointed So-licitor General of the United States, serving in that position until 1996. He now holds the position of Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law at …

Voting Rights Law And Policy In Transition, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin

Faculty Articles

The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …

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

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 …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Organizational Responsibility For Workplace Racial And Sexual Harassment: The Stories Of One Company's Workers, Cheryl L. Wade

Faculty Publications

(Excerpt)

I begin this Article with the testimony of an African-American man who, along with hundreds of African-American coworkers, brought a race discrimination suit against an industrial construction and fabrication limited liability company ("LLC") doing business in Texas and Louisiana. The company, Turner Industries ("Turner"), rigorously defended itself against the allegations, and rather than settle the case, Turner and ten of the plaintiffs went to trial in October 2012. A jury awarded two of the ten plaintiffs in the 2012 Bellwether trial $2 million each in damages, but the plaintiff whose testimony I include above lost at trial and was …

Prison Health Care After The Affordable Care Act: Envisioning An End To The Policy Of Neglect, Evelyn Malavé

Faculty Publications

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, …

Presidential Constitutionalism And Civil Rights, Joseph Landau

Faculty Scholarship

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy …

The Legal Challenges Of Diversity (Review Essay), Tanya K. Hernandez

Faculty Scholarship

Within the last year two excellent books, Mariana Valverde’s Everyday Law on the Street: City Governance In an Age of Diversity and Victoria Saker Woeste’s Henry Ford’s War on Jews and the Legal Battle Against Hate Speech, address how social anxieties about “diversity” surface in the development and enforcement of the law. While the two books focus on different eras and countries, they similarly illustrate the tensions in legal contexts that can result from the growth in diversity

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan Carle

Scholarly Articles in Law Reviews & Journals

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)-namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites …

Enforcing Desegregation: A Case Study Of Federal District Court Power And Social Change In Macon County Alabama, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court’s application of Brown played a decisive role in ending the racial caste system in this Alabama black belt county. The court, by adding the United States Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the …

Retaining Color, Veronica Root

Journal Articles

It is no secret that large law firms are struggling in their efforts to retain attorneys of color. This is despite two decades of aggressive tracking of demographic rates, mandates from clients to improve demographic diversity, and the implementation of a variety of diversity efforts within large law firms. In part, law firm retention efforts are stymied by the reality that elite large law firms require some level of attrition to function properly under the predominant business model. This reality, however, does not explain why firms have more difficulty retaining attorneys of color — in particular black and Hispanic attorneys …