Civil Rights and Discrimination Commons^™

It's Critical: Legal Participatory Action Research, Emily M.S. Houh, Kristin Kalsen

Michigan Journal of Race and Law

This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, …

Getting Off The Mommy Track: An International Model Law Solution To The Global Maternity Discrimination Crisis, Caraline Rickard

Vanderbilt Journal of Transnational Law

Women's roles in workplaces around the globe have been growing steadily for the past half-century. Yet, in everything from pay to advancement, workplace gender discrimination persists, much of it based on women's unique role as child bearers. Of the countless domestic and international efforts to address maternity discrimination, none has been completely successful. Drawing from the history of maternity leave legislation and the examples of domestic and international regimes, this Note proposes a unique solution to an international problem: an international model law. The Global Maternity Protection Act model law proposed here provides global protection for a global problem and …

Lo And Behold!: Does Tolerated Use Give An Incentive To Plagiarize? An Example Through The Music Of Bob Dylan, Julie Levine

Cardozo Arts & Entertainment Law Journal

No abstract provided.

House To House: Mergers, Annexations, & The Racial Implications Of City-County Politics In St. Louis, Anders Walker

All Faculty Scholarship

According to most scholars, Jim Crow's death elevated African Americans even as white departures depressed them, condemning blacks to isolated neighborhoods, segregated schools, and crumbling urban cores. To counter such reversals, liberals endorsed the consolidation of urban and suburban zones, hoping that such moves might thwart flight, promote integration, and ameliorate the effects of what scholars began in the 1970s to term “institutional” or “structural” racism. Initially such efforts focused primarily on schools, but quickly expanded to include other types of consolidation as well, including the consolidation, or merger, of major metropolitan areas and surrounding counties. While the rubric of …

Beyond Child Welfare - Theories On Child Homelessness, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

According to recent federal data from 2013, the number of children who experience homelessness in the United States has reached an astonishing 2.5 million. Among industrialized nations, America has a one of the highest poverty rates among children, peaking at 22% in 2010. This Article considers why there is an ambivalent and sometimes hostile response to chronic, persistent poverty among families with young children. Various reports on the state of homeless families state that the cause of homelessness is a combination of lack of affordable housing, extreme poverty, decreasing government support, domestic violence, the challenge of raising children alone, and …

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT …

Title Ix Feminism, Social Justice, And Ncaa Reform, Erin E. Buzuvis

Faculty Scholarship

This Article discusses social justice feminism as it applies to gender discrimination in collegiate and scholastic athletics in the context of Title IX requirements. Title IX activists today are primarily concerned with securing equal resources and opportunities for women in a college athletic environment. Today, that environment is becoming increasingly commercialized; this presents a Title IX problem because it creates an incentive to invest more athletic department resources into certain men’s athletic programs instead of distributing them equitably to women’s (and other men’s) programs. In addition, the NCAA is presently considering or has recently undertaken deregulation initiatives in a variety …

A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis

Faculty Scholarship

When an LGBT employee is punished for complaining about discrimination in the workplace, he or she has two potential causes of action under Title VII: first, a challenge to the underlying discrimination, and second, a challenge to the resulting retaliation. The first claim is vulnerable to dismissal under courts’ narrow interpretation of Title VII’s prohibition of discrimination “because of sex” as applied to LGBT plaintiffs. But such an outcome need not determine the fate of the second claim. Faithful application of retaliation law’s “reasonable belief” standard, which protects a plaintiff from reprisal so long as she reasonably believed that she …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

A Tale Of Two Rights, Robin West

Georgetown Law Faculty Publications and Other Works

In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades …

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

Publications

The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.

Regulating The Internet Of Things: First Steps Toward Managing Discrimination, Privacy, Security, And Consent, Scott R. Peppet

Publications

The consumer "Internet of Things" is suddenly reality, not science fiction. Electronic sensors are now ubiquitous in our smartphones, cars, homes, electric systems, health-care devices, fitness monitors, and workplaces. These connected, sensor-based devices create new types and unprecedented quantities of detailed, high-quality information about our everyday actions, habits, personalities, and preferences. Much of this undoubtedly increases social welfare. For example, insurers can price automobile coverage more accurately by using sensors to measure exactly how you drive (e.g., Progressive 's Snapshot system), which should theoretically lower the overall cost of insurance. But the Internet of Things raises new and difficult questions …

A Journalist Takes On The History Of White Supremacy, Daria Roithmayr

Publications

No abstract provided.

Toward A Definitive History Of Griggs V. Duke Power Co., David J. Garrow

Vanderbilt Law Review

When Griggs v. Duke Power Co. was unanimously handed down by the U.S. Supreme Court on March 8, 1971, the decision did not draw prominent headlines. The New York Times accorded the ruling only a two-sentence summary on page twenty-one, and the Wall Street Journal gave it modest attention on page four. The Washington Post did give the decision front-page coverage, but Gillette v. United States, a Selective Service Act case, was awarded a prominent, top-of-the-page, two-column headline while Griggs received secondary attention. Notwithstanding how modest the contemporaneous news coverage was, knowledgeable judges, scholars, and litigators quickly acknowledged how Griggs …

$1.6 Million Employment Bias Award Upheld By Manhattan Appeals Court, Arthur S. Leonard

Other Publications

No abstract provided.

Foreword: A Tribute To Margaret Montoya, Rachel F. Moran

Faculty Scholarship

Dean Moran provides opening remarks to the Chicana/o-Latina/o Law Review symposium, "Un/Masking Power: The Past, Present, and Future of Marginal Identities in Legal Academia."

Gay Rights, Equal Protection, And The Classification-Framing Quandary, Peter Nicolas

Articles

Commentators and lower courts will speculate for some time on the actual holding and potential sweep of the Supreme Court's decision in Windsor v. United States [699 F.3d 169, 175 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013)], as well as how the Court might have resolved Perry v. Brown [671 F.3d 1052, 1063 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)] on the merits.

Of at least equal and perhaps greater importance, however, is a subtle yet critical unresolved threshold question lurking in the background of these two decisions, …

Racial Profiling As Collective Definition, Trevor G. Gardner

Articles

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice.

However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In this article, I review the literature on group distinction to …

Unions And Democracy: When Do Nonmembers Have Voting Rights?, Melanie Stallings Williams, Dennis A. Halcoussis

Journal of Business & Technology Law

No abstract provided.

Post-Racial Lending?, Cassandra Jones Havard

All Faculty Scholarship

Should lenders have absolute discretion when setting mortgage loan prices regardless of the borrower's creditworthiness? How should a regulatory framework evaluate lending decisions for racial bias to determine if demographic or other variables are used as proxies for race? Congress enacted the Home Mortgage Disclosure Act in order to acquire data on mortgage lending patterns and to discourage geographical disinvestment. Basic HMDA data indicates that mortgage loan applications from black and Hispanic households are more likely to be denied than are applications from whites. Loan denial rates for blacks, Hispanics, and Asians are higher than white applicants at all income …

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

All Faculty Scholarship

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis …

Pregnant Pause: The Exclusion Of Pregnant Women From Clinical Research As Sex Discrimination, Richard M. Weinmeyer

Cardozo Journal of Equal Rights & Social Justice

The article argues that the exclusion of pregnant women from clinical research constitutes sex discrimination. This exclusion, rooted in historical and regulatory factors, has led to a significant lack of data on how medications affect pregnant women, putting their health at risk. The author advocates for legislative action to shift the research culture from exclusion to inclusion, ensuring that pregnant women receive necessary medical treatments with proper research backing.

The New Jim Crow? Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

All Faculty Scholarship

This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or JimCrow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and massincarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

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

All Faculty Scholarship

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 animus-focused jurisprudence for lifting the discrimination against the …

“To Corral And Control”: Stop, Frisk, And The Geography Of Freedom, Anders Walker

All Faculty Scholarship

This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national …

Beyond A Reasonable Doubt: The Constitutionality Of Georgia's Burden Of Proof In Executing The Mentally Retarded, Veronica M. O'Grady

Georgia Law Review

In 2002, the Supreme Court in Atkins v. Virginia announced that executing mentally retarded defendants violates the Constitution. Georgia's standard for determining whether a criminal defendant is mentally retarded-and therefore ineligible for the death penalty- is the highest in the nation, requiring defendants to prove mental retardation to a jury, during the guilt and innocence phase, beyond a reasonable doubt. As in the case of Warren Lee Hill, Jr., this high burden necessarily results in Georgia executing defendants who are almost certainly mentally retarded,arguably violating the Atkins directive. Though once the first state to create a ban on executing the …

The Agency Roots Of Disparate Impact, Olatunde C.A. Johnson

Faculty Scholarship

The disparate impact strand of antidiscrimination law provides the possibility of challenging harmful employment, education, housing, and other public and private policies and practices without the often-difficult burden of proving intentional discrimination. And yet the disparate impact standard seems to be facing its own burdens. Rulings by the Supreme Court in recent years have shaken the disparate impact standard's footing. In Ricci v. De- Stefano, the Court rejected a frontal assault to the disparate impact standard under Title VII of the Civil Rights Act of 1964, but cast the standard as at odds with Title VII's true core – …