Fourteenth Amendment Commons^™

Justifying The Disparate Impact Standard Under A Theory Of Equal Citizenship, Rebecca S. Giltner

Michigan Journal of Race and Law

Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale …

Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel

Michigan Law Review

This Note analyzes the use of coalition districts in light of current section 5 and equal protection jurisprudence and argues that, in some circumstances, the Equal Protection Clause compels the use of coalition districts to achieve non retrogression under section 5. Part I examines the use of coalition districts, using the litigation in Page v. Bartels as an example. It then argues that the Supreme Court's opinion in Georgia v. Ashcroft permits jurisdictions to create viable racial coalition districts to comply with section 5. Part II argues that while Georgia v. Ashcroft permits the use of coalition districts to achieve …

Resurrecting The White Primary, Ellen D. Katz

Articles

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …

Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott

Articles

Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed …

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …

Critical Race Histories: In And Out, Darren L. Hutchinson

Faculty Articles

Insider critiques of CRT also require critical assessment. Recent internal critics complain that racial identity discourse, including multidimensionality theory, marginalizes more important attention to material, class, or economic issues. If their claim holds true, the material harm critics serve a vital purpose: because racial injustice causes and interacts with economic deprivation, any progressive racial justice movement should interrogate class and economic inequality concems. Nevertheless, the analysis of the material harm critics suffers because it dichotomizes class and multidimensionality. Although these critics bifurcate multiplicity and class analysis, multiplicity theories relate to class analysis in two important respects. First, poverty has multidimensional …

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

Articles

Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

"The Implicit Association Test": A Measure Of Unconscious Racism In Legislative Decision-Making, Reshma M. Saujani

Michigan Journal of Race and Law

This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Sexualized Racism/Gendered Violence: Outraging The Body Politic In The Reconstruction South, Lisa Cardyn

Michigan Law Review

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes - from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, …

Conscious Use Of Race As A Voluntary Means To Educational Ends In Elementary And Secondary Education: A Legal Argument Derived From Recent Judicial Decisions, Julie F. Mead

Michigan Journal of Race and Law

This paper provides an in-depth examination of the ten recent court decisions concerning race-based student selection processes. As these cases will illustrate, school districts face increasing demands to justify any race-conscious selection process. The significance of meeting the demands and the implications for what appears to be an evolving legal theory is national in scope and broad in application. Some have even argued that some of these cases mark a departure away from the Court's thinking in Brown v. the Board of Education. It should also be noted that each of the cases mentioned above occurred in the context …

The Diversity And Remedial Interests In University Admissions Programs, Kathryne Raines

Kentucky Law Journal

No abstract provided.

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White

Michigan Law Review

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …

Nine Shibboleths Of The New Federalism, Marci A. Hamilton

Articles

No abstract provided.

Race-Based Affirmative Action In American Legal Education, Adrien Katherine Wing

Journal of Legal Education

No abstract provided.

Integration Without Classification: Moving Toward Race-Neutrality In The Pursuit Of Public Elementary And Secondary School Diversity, Paul Diller

Michigan Law Review

Ever since the Supreme Court's invalidation of racially segregated public schools in Brown v. Board of Education, America has wrestled with the challenge of successfully dismantling educational apartheid. In recent years, the federal judiciary has largely retreated from enforcing desegregation in school districts that were once under court supervision for engaging in intentional racial discrimination, finding that the vestiges of past discrimination have been satisfactorily ameliorated. In some such unitary school districts, as well as in districts in which no intentional segregation was ever identified by the courts, boards of education, have voluntarily implemented student assignment plans designed to increase …

Morgan Kousser's Noble Dream, Heather K. Gerken

Michigan Law Review

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …

A General Theory Of Cultural Diversity, Steven A. Ramirez

Michigan Journal of Race and Law

This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited …

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji

Michigan Law Review

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …

Cracking The Code: "De-Coding" Colorblind Slurs During The Congressional Crack Cocaine Debates, Richard Dvorak

Michigan Journal of Race and Law

This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory …

The American 'Legal' Dilemma: Colorblind I/Colorblind Ii--The Rules Have Changed Again: A Semantic Apothegmatic Permutation, John C. Duncan Jr

Journal Publications

"Our Constitution is colorblind" initially meant that white majority preferences could not and should not be reflected in government action. The maxim now means race should not be reflected at all in government action. The answer to racism lies somewhere between well-reasoned "blind" hope and historically-proven skepticism. Part I of this Article discusses the ideal of the colorblind society; Part II discusses what this Article deems as Colorblind I. Part III places each colorblind argument in perspective, and seeks to illustrate that the concept of colorblindness could be an ideal, but has rather become meaningless rhetoric in an endless racial …