Civil Rights and Discrimination Commons^™

Common-Law Interpretation Of Appropriate Education: The Road Not Taken In Rowley, Mark Weber

College of Law Faculty

Thirty years old in 2012, Board of Education v. Rowley is the case that established a some-benefit or floor-of-opportunity standard for the services public school districts must provide to children who have disabilities. But the some-benefit approach is by no means the only one the Court could have adopted. It could have endorsed the view of the lower courts that each child with a disability must be given the opportunity to achieve his or her potential commensurate with the opportunity offered other children. Or it could have adopted a standard based on achievement of the child’s full potential or the …

How The Expressive Power Of Title Ix Dilutes Its Promise, Dionne L. Koller

All Faculty Scholarship

Title IX is widely credited with shaping new norms for the world of sports by requiring educational institutions to provide equal athletic opportunities to women. The statute and regulations send a message that women are entitled to participate in sports on terms equal to men. For several decades, this message of equality produced dramatic results in participation rates, as the number of women interested in athletics grew substantially. Despite these gains, however, many women and girls, especially those of color and lower socio-economic status, still do not participate in sports, or remain interested in participating, in numbers comparable to their …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone

All Faculty Scholarship

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention …

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

All Faculty Scholarship

In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …

Introduction: Special Issue On Law, Kenneth Lasson

All Faculty Scholarship

Just as ensuring civil liberties for all requires eternal vigilance, so combating antisemitism is a never-ending quest. But the continuous monitoring of antisemitic incidents—a critical exercise that this journal painstakingly reflects in its “Antisemitica” feature—is merely the beginning of the everlasting effort to limit them. Bigotry comes in many guises and is a constantly evolving target, exposing the limitations of law and the frustrations of justice.

Thus, even in civilized societies where equality under the law is a guiding principle, legal remedies for discrimination are insufficient in and of themselves. They must be accompanied by purposeful good-will and a firm …

The False Promise Of The Converse-1983 Action, John F. Preis

Law Faculty Publications

The federal government is out of control. At least that's what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens' constitutional rights. How can states stop this federal juggernaut? Many are advocating a "repeal amendment, " whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can't repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called "converse-1983" action. The idea for converse-1983 laws has been around for some time …

Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby

All Faculty Scholarship

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 (“Title VI”) and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act (“ACA”) as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

Gender, Family, And Work, Marcia L. Mccormick

All Faculty Scholarship

The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

All Faculty Scholarship

Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …

Discrimination Under A Description, Patrick S. Shin

Georgia Law Review

Discrimination Under a Description .......................... Patrick S. Shin 1
In debates about the permissibility of certain kinds of
differential treatment, our judgments often seem to depend
on how to conduct in question is described. For example,
legal prohibitions on same-sex marriage seem clearly
impermissible insofar as they can be described as a form of
sex discrimination, less clearly so, at least under federal
law, if described simply as sexual-orientation
discrimination, and arguably not discriminatory at all
insofar as they constitute a universally imposed disability
on marryingwithin one's own sex. It seems, in other words,
that the prohibitionof same-sex marriage constitutes …

Defusing Implicit Bias, Jonathan Feingold, Karen Lorang

Faculty Scholarship

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined …

Reforming The Age Discrimination In Employment Act: Proposals And Prospects, Michael C. Harper

Faculty Scholarship

This article argues that the Age Discrimination in Employment Act (ADEA) should be amended to provide it with the same procedural and substantive strengths Congress has provided Title VII. The article highlights four gaps between the ADEA and Title VII: damage remedies; class actions; defenses to disparate impact actions; and causation standards for disparate treatment actions. The article also advocates other modifications of the ADEA to encourage the employment of older Americans. The article recommends compelling employers to retain productive incumbent older workers, regardless of the compensation previously promised experienced workers. It also recommends considering allowing employers to hire older …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.

Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward

Journal Articles

Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …

The Place Of Law In Ivan Illich's Vision Of Social Transformation, Bruce K. Miller

Faculty Scholarship

This Article discusses Ivan Illich’s direction for social reform that led to his book, "Tools for Conviviality", where Illich targeted development, technology, and the exploitation of nature. Illich identified three key cultural institutions that needed to be reclaimed in order to bring about an inversion of industrial society: science, language, and law. This Article focuses on the rule of law and its central institutional invention—formal adjudication.

The Author suggests that Illich’s idealism can still be found in the law reform litigation effort and identifies the diminished stature of the ideal of disinterested adjudication as a significant threat to Illich’s hopes …

Game Changer, Erin Buzuvis

Faculty Scholarship

This Article celebrates the 40th anniversary of Title IX and the activists who have fought for women's equal educational opportunities. Title IX's success is due to the eternal vigilance of the law's supporters, who continue to defend it through the political process and in the courts. The Author notes that this vigilance must continue in order for the law to address persistent sex discrimination, and to guard against unwarranted sex segregation.

Inside-Out As Law School Pedagogy, Giovanna Shay

Faculty Scholarship

In the fall of 2010, and again in spring 2012, the Author taught a course entitled Gender & Criminal Law inside the Western Massachusetts Correctional Alcohol Center in Springfield. Participants in the course included roughly equal numbers of law students from the Author's home academic institution, Western New England University School of Law, and residents of the facility. For fourteen weeks, the class met weekly at the institution to discuss issues including domestic violence law reform, the role of family ties in sentencing, and gender issues in prisoner reentry. The Author taught this course in a modified form of the …

Affirmative Action In Higher Education Symposium: Comment, Lee C. Bollinger

Faculty Scholarship

This issue – affirmative action in higher education – is an issue of enormous significance for the country. So I don't for a second treat this as just another conversation about an important legal question. I think this is one of those issues that define the country.

I'll tell you what I did as President of the University of Michigan, and in the course of that I'll try to explain the ways in which we formulated the cases that went to the Supreme Court and resulted in very important clarifications to the Fourteenth Amendment and affirmative action. Then I want …

J.D.B. V. North Carolina: An Appropriate Expansion Of Miranda To Account For Age In Juvenile Interrogations, Hanna M. Sheehan

Maryland Law Review

No abstract provided.

Electronic Privacy And Employee Speech, Pauline Kim

Scholarship@WashULaw

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased …

Minnie Liddell's Forty-Year Quest For Quality Public Education Remains A Dream Deferred, Kimberly Jade Norwood

Scholarship@WashULaw

This Article is a historic account of the hopes and dreams that a mother had for her children and her efforts to make those hopes and dreams come true. The mother, Minnie Liddell, never imagined, when she first became a mom in 1959, or years later after the birth of her fifth child, or even after she filed a lawsuit against a city school district, that she would become a pioneer and icon in the school desegregation history of St. Louis, Missouri. She really only wanted a quality public education for her children, for black children, for all children. This …

Occupying America: Dr. Martin Luther King, Jr., The American Dream, And The Challenge Of Socio-Economic Inequality, Trina Jones

Faculty Scholarship

No abstract provided.

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Scholarly Works

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Redefining The Black Face Of Affirmative Action: The Impact On Ascendant Black Women, Kevin D. Brown, Renee E. Turner

Articles by Maurer Faculty

The racial and ethnic ancestries of blacks benefiting from affirmative action is changing, as foreign-born blacks and blacks with a non-black parent constitute disproportionately large percentages of blacks attending many selective higher education institutions. Coupled with the challenges arising from the educational achievement levels of black males during the past two decades, Brown and Turner examine the implication of these developments and the likelihood that they are creating further disadvantages for black women lawyers.

Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss

Articles by Maurer Faculty

Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …

Gina, Privacy, And Antisubordination, Bradley A. Areheart

Georgia Law Review

This Essay briefly considers both the current and
optimal role of privacy in employment discrimination
jurisprudence. The recently-passed Genetic Information
Nondiscrimination Act (GINA) is illustrative of a possible
trend in employment discrimination toward privacy. In
particular, GINA includes a prohibition on the use of
genetic information in all employment decisions, affording
a measure of genetic privacy to potential and current
employees.
GINA stands in contrast to prior employment
discrimination statutes, which have often encouraged or
required employers to be knowledgeable of and consider a
particular identity trait through policies such as
reasonable accommodation, affirmative action, and the
disparate impact doctrine. …

Education's Elusive Future, Storied Past, And The Fundamental Inequities Between, Derek W. Black

Georgia Law Review

During the past half-century, education has experienced
a broad expansion of civil rights. Where no rights
previously existed, students now have the right to be free
from discrimination based on race, language status,
disability, wealth, gender, and homelessness. The full
development of these rights, along with substantive
educational improvements for disadvantaged students,
however, has recently stalled. For instance, mandatory
school desegregation, which laid the political and
theoretical foundation for other movements, is nearly non-
existent today. Other movements fare better than
desegregation, but nonetheless face serious limitations.
The overall trend of these various movements raises
serious questions about the prospects …

Immigration And Civil Rights: State And Local Efforts To Regulate Immigration, Kevin R. Johnson

Georgia Law Review

This Essay explains why U.S. immigration law and
enforcement raises some of the nation's most pressing civil
rights concerns of the twenty-first century. First,
immigration and immigration enforcement implicate a
greater diversity of "people of color," including people of
Latina/o and Asian ancestry, than that encapsulated by
the Black/white paradigm that historically has
dominated thinking about civil rights in the United
States. Second, immigration enforcement implicates civil
rights concerns different in kind than those raised by the
monumental efforts to dismantle Jim Crow and
desegregate American social life, which constituted the
long and hard-fought civil rights achievement of the
twentieth …

The Gangs Of Asylum, Linda K. Hill

Georgia Law Review

Should immigrants fleeing gang violence be entitled to
refuge in the United States? Today, the response of most
U.S. courts is "no." The principal means by which an
individual fleeing his home country seeks safety in the
United States is by qualifying for asylum or withholding
of removal. Notwithstanding some critical distinctions
between asylum and withholding of removal, each
protection requires a claimant to demonstrate his fear of

persecution is on account of race, religion, nationality,
membership in a particular social group or political
opinion. Yet rather than evaluating gang-based claims
upon existing refugee standards, the courts are
manipulating the …