Law and Race Commons^™

Illegal Reentry And Denial Of Bail To Undocumented Defendants: Unjust Tools For Social Control Of Undocumented Latino Immigrants, Patrick Kirby Madden

UC Law Journal of Race and Economic Justice

Historical, structural, statistical, and constitutional context is elemental to a proper understanding of the true purpose and effect of a criminal statute and its execution. Illegal Reentry, 8 U.S.C. § 1326, may seem like a basic rule to deter potential criminals from entering the United States. A prosecutor's argument that a defendant must be detained prior to trial due to the possibility of Immigration and Customs Enforcement removing the defendant may seem like a logical argument. However, once these actions are viewed in the succession of events that constitutes the history of undocumented Latino immigrants in the United States, are …

How Mainstream Reformers Design Ambitious Reentry Programs Doomed To Fail And Destined To Reinforce Targeted Mass Incarceration And Social Control, Gerald P. Lopez

UC Law Journal of Race and Economic Justice

The most influential publication on how to design and implement comprehensive and effective reentry programs is the 2005 REPORT OF THE REENTRY POLICY COUNCIL, produced by the bipartisan Council of State Governments (CSG). Triggered by the disturbingly high price of the reigning criminal justice system, and aiming to reduce costs and enhance safety, the REPORT manages both to champion an ambitious approach and to doom its chances of success. Perhaps this effect can be described as predictable and even intentional, especially given the overlapping interests of the elected and appointed officials (and the staffers and collaborators) who comprise CSG. But …

The Real Id Act: Proposed Amendments For Credibility Determinations, Linda Lam

UC Law Journal of Race and Economic Justice

United States refugee law governs asylum applicants and therefore plays a critical role in shaping the American population. Asylum officers and immigration judges' credibility assessments often dictate whether asylum applications are granted. The REAL ID Act of 2005, a series of statutes passed by Congress to aid the fight against terrorism, changed the standard for rendering credibility determinations. It allows triers of fact-asylum officers and immigration judges-to base adverse credibility decisions on immateral inconsistencies in an asylum applicant's story. These minor inconsistencies often arise from cultural differences or trauma stemming from the applicant's past experiences. This note addresses the inherent …

Sensibilities For Social Justice Lawyers, Ascanio Piomelli

UC Law Journal of Race and Economic Justice

This essay describes six sensibilities that are crucial for 21st Century social justice lawyers. It urges social justice lawyers to know thoroughly the literature on lawyering and social change movements, to be clear about their fundamental aims, to connect their efforts with others, to observe from multiple perspectives, to combat cultural encapsulation, and to put in the time necessary to ensure the survival, advancement, and flourishing of clients and communities.

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina Fernandes

UC Law Journal of Race and Economic Justice

While discrimination against multiracial people undoubtedly occurs, antidiscrimination law as it is currently understood is ill-equipped to address the problem. In this article, Dr. Fernandes argues that the modern application of two broad sources of antidiscrimination law-the Fourteenth Amendment's Equal Protection Clause and Title VII of the Civil Rights Act of 1964-is out of step with their original purpose: to provide remedies for discrimination against historically oppressed groups of people. Only by recognizing multiracial individuals as one of these groups can antidiscrimination law rectify the harms visited on them.

This article first explores the history of equal protection and employment …

Shattered Dreams: An Analysis Of The Georgia Board Of Regents' Admissions Ban From A Constitutional And International Human Rights Perspective, Azadeh Shahshahani, Chaka Washington

UC Law Journal of Race and Economic Justice

Access to higher education for undocumented immigrants is a highly debated issue across the country. While some states have been more inclusive of undocumented students, other states have implemented laws which make higher education unattainable for this group. In 2008, South Carolina enacted House Bill 4400 which bars undocumented immigrants from attending public colleges and universities. The University System of Georgia is, so far, the only other public university system to enact a policy which outright bans undocumented students from certain colleges.

This article begins by discussing the Georgia Board of Regents' ban from a constitutional perspective, applying an equal …

A Local Official's Guide To Language Access Laws, David Jung, Noemi Gallardo, Ryan Harris

UC Law Journal of Race and Economic Justice

Sharp growth in immigration has introduced California to a large number of persons who do not speak and understand English well enough to make use of basic social services. These individuals may not know what public services are available, may not be able to communicate with local officials, and may not receive information that local agencies release to the public. Local agencies throughout California should ensure that all their services are accessible to persons for whom English is a barrier to understanding.

This article first explains why the California and federal constitutions forbid laws requiring that services be provided in …

Are California's Homeless Children Being Left Behind - Analyzing The Implementation Of Mckinney-Vento Education Rights In California, Taylor Pospichel

UC Law Journal of Race and Economic Justice

The term "homeless" evokes the image of an individual adult begging for change on a city sidewalk. The growing problem of homeless families, and of homeless children in particular, has not achieved the same level of social consciousness. Perhaps for that reason, the services in place for homeless individuals are not equipped to address the needs of displaced children. Title VII of the federal McKinney-Vento Act addresses the problems homeless children face in attending and succeeding in school. California has similar measures in place. However, the needs of California's homeless children are not adequately met at present.

This note exan-mines …

Physician Assisted Suicide: Debunking The Myths Surrounding The Elderly, Poor And Disabled, Anne Marie Su

UC Law Journal of Race and Economic Justice

In most states, patients with terminal, painful, and debilitating conditions have no means of ending their suffering except by waiting to die. As interest in physician assisted suicide began to grow in this country, the Supreme Court in a series of decisions expressed fear that recognition of a right to die would lead to abuses. For example, disability rights activists in particular argue that it would encourage burdened family members to pressure disabled persons to end their lives. Evidence from the two states that have legalized physician assisted suicide, however, should lay these fears to rest.

This note opens with …

Crimes Without Punishment: An Update On Violence Against Women And Impunity In Guatemala, Karen Musalo, Blaine Bookey

UC Law Journal of Race and Economic Justice

In response to rates of violence against women that rank among the highest in the world, Guatemala enacted the Law Against Femicide and Other Forms of Violence Against Women in 2008. Unfortunately, the law does not seem to be rectifying the deeply rooted problem of gender-based violence that plagues Guatemala. A 2010 report by the Center for Gender & Refugee Studies and later investigation in collaboration with the Refugee and Human Rights Clinic at UC Hastings revealed the degree to which Guatemala is failing to protect women from gender-motivated attack.

This article first surveys the scope of the problem of …

Planting People, Growing Justice: The Three Pillars Of New Social Justice Lawyering, Artika R. Tyner

UC Law Journal of Race and Economic Justice

To accomplish meaningful social change, lawyers must move beyond their traditional role as mediaries between clients and the justice system and work collaboratively with marginalized communities. Lawyers should stand as leaders to help underprivileged people obtain the basic necessities of life and dignity. To that end, Dr. Tyner introduces three pillars of new social justice lawyering: social justice lawyering, leadership, and public policy advocacy.

This essay opens with a survey of several theoretical approaches to social justice lawyering. It moves on to examine how lawyers can serve as leaders. Finally, the article explores ways in which lawyers can serve as …

Rape By The System: The Existence And Effects Of Sexual Abuse Of Women In United States Prisons, Samiera Saliba

UC Law Journal of Race and Economic Justice

For thousands of women incarcerated in U.S. prisons, punishment has come to include sexual abuse by male prison guards. Twenty-five percent of women inside prison report such abuse, and that number likely falls short of the true figure. Nonetheless, the majority of guards in women's prisons continue to be male.

This note first explores the reasons for the prevalence of sexual abuse in women's prisons. It moves on to the effect of this abuse on women inside and on their communities. The note also surveys the legal barriers that prevent abused women inside from seeking redress. Finally, the note proposes …

The Affordable Care Act And Beyond: Opportunities For Advancing Health Equity And Social Justice, Rene Bowser

UC Law Journal of Race and Economic Justice

In 2010, the most monumental health care legislation in forty-five years was enacted. The Patient Protection and Affordable Care Act ("ACA") makes changes great and small in virtually every important component of the American health care system. The new law's implications will not be known fully for many years because state governments and federal agencies are in the process of interpreting key provisions, drafting rules and devising general implementation strategies. And, uncertainty exists about the scope of the ACA because of the recent Supreme Court ruling in National Federal of Independent Business v. Sebelius. The court upheld nearly all of …

More Restrictive Than Necessary: A Police Review Of Secure Housing Units, Zafir Shaiq

UC Law Journal of Race and Economic Justice

When almost seven thousand Pelican Bay inmates refused food for weeks on end, California took notice of the unacceptable living conditions in its Secure Housing Units (or SHUs). SHU residents live for months and years with almost no human contact, and succumb to serious mental illness as a result. Despite the attention that the hunger strikes brought to the issue, however, meaningful improvement to California's SHUs does not appear to be on the horizon.

This note begins with the history of isolation in American prisons and its use as a means of long-term punishment and control. It then depicts the …

A Rose By Any Other Name: The Chilling Effect Of Ice's Secure Communities Program, Stephanie Kang

UC Law Journal of Race and Economic Justice

The September 11, 2001, terrorist attack on the United States created a national urgency to better police United States borders. However, the attack also led to a backlash against undocumented immigrants by increased Congressional funding to implement immigration enforcement measures. One of the more controversial state and federal collaborative efforts to enforce immigration laws is the Secure Communities program mandating all participating jurisdictions to submit fingerprint biometrics to Immigrations and Customs Enforcement ("ICE") to enable ICE to run the fingerprints through immigration databases and identify deportable immigrants.

The primary goal of the program is to remove the most dangerous criminals …

A Saving Grace - The Impact Of The Fostering Connections To Success And Increasing Adoptions Act On America's Older Foster Youth, May Shin

UC Law Journal of Race and Economic Justice

This note examines the struggles of youths who must leave state foster care systems (called "aging out" of foster care) upon turning eighteen years old. Thousands of young people age out of foster care systems each year. Foster care systems have traditionally abandoned children upon their eighteenth birthday, without providing aged-out youth real assistance in obtaining employment, health services, or basic shelter. Most commonly, these young adults do not have sufficient resources or support to allow them to transition into safe and stable lives. The majority of these older youths either get incarcerated, become homeless, or are forced to depend …

Don't Get It Twisted: Why Employer Hairstyle Prohibitions Are Racially Discriminatory, Devin D. Collier

UC Law Journal of Race and Economic Justice

Appearance and grooming policies in the workplace that prohibit hairstyles worn predominately by African- American employees, including dreads, cornrows, braids, and afros, constrain African-American cultural identity and are racially discriminatory. These policies exhort African- Americans "to cover" their race and modify their hair to assimilate their looks with Anglo-American beauty ideals. These policies found in the private workplace serve no legitimate "business necessity" and are merely a proxy for unlawful race discrimination.

Plaintiffs who challenge these policies as race discrimination, however, are unable to prove a violation of Title VII because of an inability to demonstrate that African- American hairstyle …

The Impact Of Berguis V. Thompkins On The Eroding Miranda Warnings And Limited-English Proficient Individuals: You Must Speak Up To Remain Silent, Brenda L. Rosales

UC Law Journal of Race and Economic Justice

Miranda v. Arizona requires law enforcement to warn defendants of their right to remain silent and give defendants an explanation that anything said can and will be used against the defendant in court. However, Berghuis v. Thompkins turned Miranda upside down by requiring defendants to unambiguously invoke their right to remain silent or be legally presumed to have waived their rights. Meaning that a defendant's yes or no answer to any question, including questions unrelated to the case, may be interpreted as a knowingly and intelligent waiver of the defendant's Miranda rights.

This note will address how the lower standard …

Out For Blood: Employment Discrimination, Sickle Cell Trait, And The Nfl, Chika Duru

UC Law Journal of Race and Economic Justice

Recently, numerous athletes, particularly football players, have fallen ill and some have even died from exercise related health complications linked to the sickle cell trait they carry. Not surprisingly, the affected athletes' families or estates have received large court judgments in connection with their injuries, and after a few such judgments at the collegiate athletic level, the National Collegiate Athletic Association recently instituted mandatory sickle cell trait testing for every incoming division I student-athlete.

Though the mandatory sickle cell trait testing appears permissible at the collegiate level, this article examines the potential consequences of a similar policy at the professional …

From The Oppressed To The Terrorist: Muslim-American Women In The Crosshairs Of Intersectionality, Sahar F. Aziz

UC Law Journal of Race and Economic Justice

In the post-9/11 era, Muslim women donning a headscarf in America find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women's rights organizations, or civil liberties advocates.

This article examines how the September 11th attacks adversely impacted the lives of headscarved Muslim women in ways different than Muslim men. Ten years after 9/11, there is a plethora of literature about what has become known as "post-9/11 discrimination." Most of the discussion focuses …

The Aspiring Attorney With Adhd: Bar Accommodations Or A Bar To Practice, Neha M. Sampat, Esme V. Grant

UC Law Journal of Race and Economic Justice

This article is the first in the academic literature to examine how a strict application of the childhood history requirement reduces the likelihood that applicants will receive ADHD accommodations on the bar exam based on race, sex, socioeconomic status, location, and age. A significant number of state bars, including in the largest legal markets of New York and California, require the bar applicant to provide a well-documented childhood history of ADHD symptoms. Many of the factors making it impractical or impossible to obtain childhood history documentation disproportionately affect people of minority backgrounds, legally protected classes, and other populations significantly underrepresented …

United States V. Duro: Farmworker Housing And Agricultural Law Constructions, Guadalupe T. Luna

UC Law Journal of Race and Economic Justice

This article seeks to addresses how the nation's food production systems produce negative conditions for foreign-born Indigenous people employed for their labor. The article will utilize the case of the migrant Pur6pecha, on the Torres Martinez Desert Cahuilla Indian Reservation in U.S. v. Duro . It will deeply examine the wide array of agricultural laws and policies that are available and aid growers and producers while not requiring that growers or producers to provide habitual farmworker housing. After discussing in detail the lack of adequate housing options for immigrant farmworkers throughout the nation and highlighted by the U.S. v. Duro …

The Connection Between Permanency And Education In Child Welfare Policy, Kele Stewart

UC Law Journal of Race and Economic Justice

This article explores the relationship between permanency, the dominant child welfare policy, and the educational needs of children in out-of-home care. The child welfare system has traditionally focused on finding children a permanent home. Education and other aspects of a child's well-being receive less attention. The failure to address children's educational needs is alarming given their poor academic performance. Studies show that compared to their peers from similar backgrounds, children in out-ofhome care perform below grade level, have lower test scores and high school completion rates, and have more disciplinary problems. These educational deficits contribute to challenges faced by former …

Creating New Categories: Anglo-American Radical Feminism's Constitutionalism In The Streets, Yxta Maya Murray

UC Law Journal of Race and Economic Justice

This note examines the struggles of youths who must leave state foster care systems (called "aging out" of foster care) upon turning eighteen years old. Thousands of young people age out of foster care systems each year. Foster care systems have traditionally abandoned children upon their eighteenth birthday, without providing aged-out youth real assistance in obtaining employment, health services, or basic shelter. Most commonly, these young adults do not have sufficient resources or support to allow them to transition into safe and stable lives. The majority of these older youths either get incarcerated, become homeless, or are forced to depend …

A Deregulatory Framework For Alleviating Concentrated African-American Poverty, Benjamin Zimmer

UC Law Journal of Race and Economic Justice

America's urban poor have become more geographically concentrated and isolated, of which, African Americans comprise the majority. Governmental efforts to combat concentrated poverty have consisted primarily of new government interventions in the housing market: subsidies, mandates, and other programs and regulations designed to compel socio-economic or racial integration. All the while, a separate set of government interventions in the form of tax expenditures, education financing, and land-use controls are largely responsible for the perpetuation of concentrated African-American poverty in the first place.

It is time to consider that a successful approach to poverty de-concentration and residential integration must begin by …

California Eviction Protections For Victims Of Domestic Violence: Additional Protections Or Additional Problems, Rebecca Licavoli Adams

UC Law Journal of Race and Economic Justice

In 2011, California Code of Civil Procedure section 1161.3 (Section 1161.3) came into effect providing victims of domestic violence with an affirmative defense against a landlord's eviction action if resulting from an act of domestic violence. Domestic violence victims often are faced with homelessness due to lease provisions that allow eviction due to a violent or criminal act occurring in their rental unit or because of noise complaints from other tenants. After a victim is evicted the victim may have difficulty finding a new rental due to credit issues or a criminal history directly relating to the domestic violence.

This …

Unlawful Arrests And Over-Detention Of America's Immigrants: What The Federal Government Can Do To Eliminate State And Local Abuse Of Immigration Detainers, Molly F. Franck

UC Law Journal of Race and Economic Justice

Ever since Arizona governor, Janice Brewer, signed S.B. 1070 into law in early 2010, national debates over immigration have dominated the public discourse, and precipitated a tidal wave of state legislative proposals to give states authority to regulate immigration. At the same time, however, many state and local police departments assist Immigration and Customs Enforcement ("ICE") with enforcing federal immigration law by means of 287(g) Agreements, the Secure Communities program, and immigration detainers. An immigration detainer, often referred to as an ICE detainer or ICE hold, authorizes state and local police to keep an arrestee for up to forty-eight hours …

Resistance And Repression: The Black Guerrilla Family In Context, Azadeh Zohrabi

UC Law Journal of Race and Economic Justice

The California Department of Corrections and Rehabilitation ("CDCR") considers prison gangs to be serious threats to prison safety and security and has developed a "gang validation" system to identify suspected prison gang members and their associates. The CDCR administratively segregates these prisoners from the general population by use of harsh, highly restrictive secure housing units ("SHUs"). The CDCR's gang validation process is currently applied to the Black Guerrilla Family ("BGF"), the only Black prison gang recognized by the CDCR.

This note will engage in a historical examination of the political movement that gave rise to the BGF and the life …

Beyond Bed And Bread: Making The African State Through Marriage Law Reform - Constitutive And Transformative Influences Of Anglo-American Legal Thought, Sylvia Wairimu Kang'ara

UC Law Journal of Race and Economic Justice

This article argues that marriage law reform in African countries formerly under British colonial rule has been as constitutive of the family as of the state; and that consequently, legal pluralism is an important tool of national and transnational governance. This is because marriage law has directly contributed to the economic modernization programs of colonial and postcolonial governments. For one, the colonial land law regime and subsequent expropriation of land drew inspiration from the sharp distinction colonial courts made between African and Western ideas of family.

Later, postcolonial marriage law adopted a doctrinal template that embraced individual choice and liberty, …

Suffering Without Suffrage: Why Felon Disenfranchisement Constitutes Vote Denial Under Section Two Of The Voting Rights Act, Matthew E. Feinberg

UC Law Journal of Race and Economic Justice

This article explores state felon disenfranchisement laws and proposes a new way for felons to challenge the legality of excluding them from the democratic process. Despite the seemingly explicit grant of authority in the Fourteenth Amendment to exclude felons from the voting process, this article posits that the Voting Rights Act provides an alternative, and more attractive, vehicle for felons to secure the right to vote. This article examines the current Circuit split on whether the Voting Rights Act even allows for or contains a cause of action to challenge felon disenfranchisement laws. Concluding that it does, the article moves …