Civil Rights and Discrimination Commons^™

The Consequences Of A "War" Paradigm For Counterterrorism: What Impact On Basic Rights And Values?, Laurie R. Blank

Georgia Law Review

Policy makers have used the rhetoric of "war"
throughout the past century to describe a major
governmental or societal effort to combat an evil that
threatens society, national security or other communal

good. It is both a rhetorical tool and a resource
mobilization, and above all a coalescing of authority to
meet the challenge, whether poverty, drugs or-most
recently-terrorism. Soon after 9/11 made al Qaeda a
household word, the Bush Administration characterized
U.S. efforts to defeat al Qaeda as the "War on Terror."
Here, however, the terminology of "war" goes far beyond
rhetoric, resource re-allocation and centralizing of
authority. When …

Impairment As Protected Status: A New Universality For Disability Rights, Michelle A. Travis

Georgia Law Review

This Article analyzes the fundamental change to federal
civil rights law that Congress accomplished through the
ADA Amendments Act of 2008 (the ADAAA). Congress
enacted the ADAAA in response to a series of United States
Supreme Court opinions that had narrowly interpreted the
definition of disability in the Americans with Disabilities
Act of 1990. Although many commentators have
recognized the ADAAA's intent to restore the class of
individuals with disabilities to the breadth that Congress
originally intended, this Article argues that the ADAAA
accomplished something more significant: it extricated
disability from the broader concept of impairment. As a
result, the …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

Peacemaking & Provocation: A Response To Professor Tracey Jean Boisseau, Dan Subotnik

Scholarly Works

No abstract provided.

Conscientious Objection To Creating Same-Sex Unions: An International Analysis, Bruce Macdougall, Elsje Bonthuys, Kenneth Mck. Norrie, Marjolein Van Den Brink

All Faculty Publications

In jurisdictions that recognize same-sex marriages and unions, the question arises as to the extent to which civic officials who normally preside at such unions can refuse such participation for religious reasons. This paper examines this issue in the context of four jurisdictions: Scotland, Canada, the Netherlands and South Africa. What is striking is how different is the process of reaching a resolution in each jurisdiction, though the actual result might be the same. This difference arises because of the jurisdiction-specific reasons why same-sex marriages and unions are recognized, how they are recognized, the status of the officers who preside …

Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby

All Faculty Scholarship

Point (Overview): Interpersonal and institutional racial biases are the principal reasons for racial disparities in accessing health care and disparities in African Americans’ health status, which can only be addressed by acknowledging and putting an end to interpersonal and institutional racial bias in the health care system that adversely affects the health status African-Americans.

Counterpoint (Overview): The irrational structure of health care, which is based on ability to pay, rather than need is the main cause of racial disparities in health, which will not be equalized until the structure of the health care system is fixed or when African Americans’ …

The Prisoners' Property Dilemma: The Proper Approach To Determine Prisoners' Protected Property Interests After Sandin And Castle Rock, Corbin R. Kennelly

Georgia Law Review

The Proper approach to determine when prisoners have
property interests protected by the Due Process Clause is
currently uncertain. The Supreme Court addressed
prisoners' liberty interests in Sandin v. Conner, but lower
courts have split over whether to apply the Sandin test to
prisoners' property interests. Further complicating
matters, the Supreme Court recently addressed property
interests generally in Town of Castle Rock v. Gonzales.
There, the Court seemed to add additional hurdles to the
finding of protected property interests: A statute must
clearly indicate that it gives rise to an entitlement; the
entitlement must have an ascertainable monetary value;
and, …

Disabling Attitudes: U.S. Disability Law And The Ada Amendments Act, Elizabeth F. Emens

Faculty Scholarship

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA …

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case-control design to identify the effects of living in one of New York …

Work-Family Conflict And The Pipeline To Power: Lessons From European Gender Quotas, Julie C. Suk

Articles

The article examines the persistent gender disparities at the top of the legal profession, attributing them to work-family conflict and the disproportionate impact of caregiving responsibilities on women. It explores European gender quotas as a potential solution, arguing that such measures address the legitimacy and effectiveness of institutions by ensuring gender parity in leadership positions. While acknowledging the challenges in implementing quotas in the U.S., the analysis suggests that European approaches offer valuable insights for addressing the "leaky pipeline" and advancing gender equality in the legal profession.

Contextualizing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Faculty Scholarship

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the wellstudied agency and trade association examples. The newer regimes mix …

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of "equality directives," whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private …

Brief Of Committee Of Law Professors And Constitutional Historians As Amicus Curiae In Support Of Plaintiffs-Appellants, Coalition To Defend Affirmative Action, Integration & Immigrant Rights & Fight For Equal. By Any Means Necessary (Bamn) V. Regents Of The Univ. Of Mich., Nos. 08-1387, 08-1534 (6th Cir. Oct. 25, 2011)., Michelle Adams, Richard Aynes, Wilson R. Huhn, Michael A. Lawrence, Michael Perry, Richard Saphire, Christopher Waldrep, Rebecca Zietlow

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in Michigan’s public universities within a broader historical context. State constitutional amendments such as Proposal 2 are not uncommon in American history. In reaction to calls for reform from a minority group - whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration - the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller

Faculty Scholarship

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …

Book Review, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

Thirteenth Amendment Optimism, Jamal Greene

Faculty Scholarship

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This Essay examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adaption by courts. The Essay argues that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process …

Amicus Curiae Brief On Behalf Of The Fred T. Korematsu Center For Law And Equality, In Support Of Neither Party, Robert S. Chang, Lorraine K. Bannai, Robert C. Boruchowitz, David A. Perez

Fred T. Korematsu Center for Law and Equality

Civil Rights Amicus Brief Project

Amici Curiae Brief On Behalf Of The Fred T. Korematsu Center For Law And Equality, The Latina/O Bar Association Of Washington, And The Loren Miller Bar Association, In Support Of Petitioner, Robert S. Chang, Lorraine K. Bannai, Robert C. Boruchowitz, David A. Perez

Fred T. Korematsu Center for Law and Equality

No abstract provided.

Alvarado Revisited: A Missing Element In Alaska’S Quest To Provide Impartial Juries For Rural Alaskans, Jeff D. May

Alaska Law Review

In Alvarado v. State, the Alaska Supreme Court declared that an impartial jury is a cross section of the community and that the community where the events at issue transpired must be represented in the jury. This decision spurred changes to jury selection procedures and the creation of Criminal Rule 18, an effort to ensure defendants from remote villages are judged by a jury representative of these rural areas. The Alaska Court of Appeals recently addressed an issue of first impression regarding the application of Criminal Rule 18. In Joseph v. State, the defendant was convicted of murdering his …

Sexual Epistemology And Bisexual Exclusion: A Response To Russell Robinson's "Masculinity As Prison: Race, Sexual Identity, And Incarceration", Michael Boucai

Journal Articles

No abstract provided.

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan

Chicago-Kent Law Review

The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of …

The R-Word: A Tribute To Derrick Bell, Kenneth B. Nunn

UF Law Faculty Publications

Racism has become the “R-word,” an allegation that is so outrageous that it cannot even be spoken in public, let alone seriously addressed. In this brief exploration, I propose that it is exactly because racism continues to loom large in American society that talking about it has become taboo. In other words, banning the “R-word” serves a political function. It masks the failure of American society to confront the existence of racism and do something about its effects. Derrick Bell's path breaking work can be used to show why the focus of race discourse has moved from debating over what …

Talking About Race And Equality, Sharon E. Rush

UF Law Faculty Publications

Lots of people of different races are increasingly uncomfortable talking about race. They prefer to function in a colorblind society where they insist that race is irrelevant. Not surprisingly, the concept of racial silencing is consistent with the concept of colorblindness. Logically, it seems impossible to talk about race if we are not even supposed to see it. The idea seems to be that if people who believe in racial equality magically stopped seeing and talking about race they could avoid the negativity surrounding racial issues and just hope that the inequality would fix itself. But we know that if …

Why Gays Should Not Serve In The United States Armed Forces: A Gay Liberationist Statement Of Principle, Shannon Gilreath

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

"Better Dead Than Co-Ed"? Transgender Students At An All-Women's College, Laura Minsun Brymer

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Introduction, Jayne W. Barnard

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby

Court Briefs

QUESTIONS PRESENTED (1) Does the anti-retaliation provision in section 15(a)(3) of the Fair Labor Standards Act apply to retaliation by an employer against a job applicant? (2) Is the private cause action provided by section 16(b) of the FLSA available to a job applicant who is retaliated against by an employer?