Civil Rights

“Passing” for White to Get Into Harvard? By Grace Yia-Hei Kao

by Feminism and Religion

Originally published on Feminism and Religion project

Asian Americans and Harvard University have been in the news and on my mind recently. The bigger story has been about... more Asian Americans and Harvard University have been in the news and on my mind recently. The bigger story has been about the “Linsanity” surrounding (Harvard grad) New York Knicks player Jeremy Lin who continues to take the NBA by storm.

The smaller story, though one that also made national headlines in  early February, is of the recent decision by the Education Department’s Office for Civil Rights to investigate a complaint that Harvard and Princeton Universities discriminate against Asian Americans in admissions.

According to Daniel Golden of the Bloomberg News who first broke the story:

“Like Jews in the first half of the 20th century, who faced quotas at Harvard, Princeton, and other Ivy League schools, Asian-Americans are over-represented at top universities relative to their population, yet must meet a higher standard than other applicants based on measures such as test scores and high school grades, according to several academic studies.”

I May Not Get There With You: "I've Been to the Mountaintop" as Epic Discourse

by Bethany Keeley-Jonker

You [Still] Can’t Get Married, You're Faggots

by Jacob Held

Draft of a Revised version of my paper "You Can't Get Married You're Faggots," for the upcoming "Ultimate South Park and Philosophy" edited by Robert Arp (Wiley-Blackwell)

This is an update of the chapter published several years ago. It includes updated info on the status of marriage... more This is an update of the chapter published several years ago. It includes updated info on the status of marriage rights in the country, legal trends, and minor alterations making it, I think, better.

Do We Need More “Ministerial Exceptions”? by Kile B. Jones

by Feminism and Religion

Originally published by the Feminism and Religion project

In a recent unanimous and precedent-setting Supreme Court ruling, a “ministerial exception” was given to Hosanna-Tabor... more In a recent unanimous and precedent-setting Supreme Court ruling, a “ministerial exception” was given to Hosanna-Tabor Evangelical Lutheran Church and School regarding employment discrimination.  Cheryl Perich, a “called teacher” at Hosanna-Tabor, was fired after issues surrounding her narcolepsy developed.  As is well known in the United States, innumerable federal, state, and local laws exist to protect employees from discrimination based on race, sex, age, disability, and so forth.  Title VII of the Civil Rights Act (1964) prohibits employment discrimination based on race, color, sex, religion, or national origin.  In the Americans with Disabilities Act (ADA, signed in 1990), employers are also held liable for discrimination based on an employees’ disability.  The “ministerial exception” excludes religious institutions and ministers from the ADA.  It is important to note that the ADA protects employees hired by private companies as well as public ones.

In the slip opinion, the Supreme Court argues that, “The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.”

An assessment of the impact of Plessy v. Ferguson (1896) on the early African-American Civil Rights Movement

by A N

A short assessment of the 1896 ruling on the later execution of the Civil Rights Movement, attributing a central role... more A short assessment of the 1896 ruling on the later execution of the Civil Rights Movement, attributing a central role to it.

Teaching African American History in the Age of Obama

by Jessica Millward

James Eastland: The Shadow of Southern Democrats, 1928-1966

by Maarten Zwiers

PhD dissertation, University of Groningen, the Netherlands
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During the civil rights era in the United States, the South was often considered a country of intransigent racism,... more During the civil rights era in the United States, the South was often considered a country of intransigent racism, gothic politics and hooded terrorism. Mississippi in particular was singled out as “the South’s South,” a state where a totalitarian system of white supremacy reigned supreme. Its political establishment, represented by James O. Eastland in the U.S. Senate, accentuated the state’s devotion to segregation in its rhetoric and actions.

Undoubtedly, this image of the Magnolia State and of its political representatives was not solely based on myth. White on black violence reached unimaginable proportions in Mississippi during the 1960s. The state’s leadership did very little to stop this aggression and oftentimes even encouraged it. And white Mississippians offered stiff resistance to the attempts of the federal government to implement civil rights legislation.

This image, however, tells only part of the story about the reality of Mississippi politics. When the theory of interposition and the organizing principle of white massive resistance proved to be impracticable, southern politicians and their constituents had to find methods to accommodate to new social relations without losing too much of the old ways.

My research focuses on this particular subject, and how it developed on the federal and state level. Through the study of the career of James Eastland, I will investigate how this politician responded to the failure of massive resistance, how he adjusted his segregationist views to new realities, and how he used his position of power to defend the white southern way of life.

Eastland operated within the framework of the Democratic Party, which started to lose its status as the party of the South when it embraced a liberal ideology of racial equality. His close relationship with politicians such as John Kennedy and Lyndon Johnson complicated his image as defender of the Old South even further. Yet he understood that his political influence in Washington was largely based on his connections with the administration and on his membership of the Democratic Party. As such, the story of James Eastland is a story of conflict and compromise with the federal government, the Democrats, and the agenda of the civil rights movement.

Seattle in the 1960s: Music, Identity, and the Struggle for Civil Rights

by Rylan Kafara

From Civil Liberties to Human Rights? British Civil Liberties Activism and Universal Human Rights

by Chris Moores

This article discusses British civil liberties organisations hoping to engage in a broader human rights politics... more This article discusses British civil liberties organisations hoping to engage in a broader human rights politics during and immediately after the Second World War. It argues that various movements and organisations from sections of the British Left attempted to articulate a human rights politics which incorporated political, civil, social and economic rights during the 1940s and
early 1950s. However, organisations were unable to express this and mobilise accordingly. This reflected the collapse of the popular-front-style alliances forged in the 1930s and the difficulties in articulating political positions distinct from the ideological polarisation that emerged with the onset of the Cold War.

Direitos, Trabalho, Ócio e Felicidade

by Paulo Ferreira da Cunha

in "Seara Nova", n.º 1717, 2011, pp. 25-26.

A situação de quem é pobre, isto é, de quem precisa de trabalhar para viver (não confundir com o indigente), é hoje... more A situação de quem é pobre, isto é, de quem precisa de trabalhar para viver (não confundir com o indigente), é hoje cada vez mais grave e paradoxal. Se está desempregado, e o desemprego sobe a níveis inimagináveis, é a miséria, porque as protecções sociais escasseiam e diminuem drasticamente. Se está empregado, é submetido aos mais duros tratos: com direitos adquiridos em confisco permanente. Obrigado a ritmos de trabalho, metas, horários, cada vez mais gravosos. Um retrocesso civilizacional devastador. E quando tem escassos tempos livres, mesmo esses são formatados pela cultura mediática, que, muito frequentemente, leva água ao moinho da alienação.

The Manifesto of a Noncompliant Mental Patient

by Aubrey Ellen Shomo

published in Open Minds Quarterly (Spring 2007, Volume IX, Issue I)

I see it everywhere: People with mental illness need medication. It sounds reasonable.

Today, there are... more I see it everywhere: People with mental illness need medication. It sounds reasonable.

Today, there are even political organizations that seek to make it easy to force a person to take it.

It's easy to look at another and assume things like that. It's human. After all, it's compassionate to help someone who isn't able to ask for help, right? They'll thank you in the long run, won't they?

Re-examining the Montgomery Bus Boycott: Toward an Empathetic Pedagogy of the Civil Rights Movement

by Derek Alderman

Alderman, Derek H., Paul Kingsbury, and Owen Dwyer. (forthcoming, 2013) “Re-examining the Montgomery Bus Boycott: Toward an Empathetic Pedagogy of the Civil Rights Movement.” Professional Geographer.

Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family

by Matthew O'Brien

Forthcoming in The British Journal of American Legal Studies, Vol. 1, Issue 2 (Summer/Fall 2012).

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary... more John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.

Courts and Late-Modern Security Crises: Judicial Deference, Temporary Emergency Powers and the Rule of Law in Quebec and Northern Ireland

by Darren Pacione

M.A. Thesis (2011), Department of Law and Legal Studies, Carleton University

Historically, in the common law jurisdictions examined in this study, judicial responses to emergency powers in times... more Historically, in the common law jurisdictions examined in this study, judicial responses to emergency powers in times of real or perceived emergencies have consistently shown patterns of deference to executive government authority, although there are notable exceptions. This dissertation seeks to ground recent debates around the legal responses to national security threats and further conceptualize contemporary theoretical and constitutional issues in historical examples from Canada and Ireland, and in particular, Quebec and Northern Ireland in the 1970‘s. A comparative examination of the 1970 October Crisis involving the FLQ in Quebec and the extended conflict in Northern Ireland involving the IRA through the 1970s and 1980s analyzes the effects of temporary emergency measures and related accommodations of the regular criminal law. While the legal regulation of political power in times of crisis is pertinent to the continuously evolving national security narrative, there are other important checks, including enhanced parliamentary controls, re-imaginings of the rule of law and entrenched rights, which are referred to here but also warrant further study.

Civilizing Batson

by Nancy Leong

97 Iowa Law Review ____ (forthcoming 2012)

In the twenty-five years since Batson v. Kentucky, courts have gradually narrowed its holding and limited its... more In the twenty-five years since Batson v. Kentucky, courts have gradually narrowed its holding and limited its application. Subsequent decisions have diminished the utility of Batson as a means of challenging racially discriminatory peremptory strikes. This Article examines why the doctrine has evolved this way. Elsewhere I have explored the influence of contextual variables — the available remedy, the facts that courts encounter, and the procedural posture in which rights-making occurs — on the ultimate scope of the substantive right that courts articulate. Batson provides a particularly rich opportunity to consider these variables because peremptory challenges are adjudicated in a highly idiosyncratic context: criminal defendants, usually on appeal post-conviction, seek the strong medicine of reversal for an injury to someone else’s Equal Protection rights that may not even have affected the verdict.

The idiosyncrasies of the context in which Batson is litigated lend themselves to an intriguing inquiry: How might Batson doctrine have evolved differently if peremptory challenges were also adjudicated by the jurors who had been struck? I conclude that — were courts to adjudicate peremptory challenges both in the context of claims by criminal defendants seeking reversal and in the context of claims by struck jurors seeking money damages or declaratory relief — the shape of the doctrine would provide a more accurate appraisal of the harms flowing from the use of race in peremptory challenges and a more robust mechanism for addressing those harms.

Rethinking the Order of Battle In Constitutional Torts: A Reply to John Jeffries

by Nancy Leong

105 Northwestern University Law Review 969 (2011)

This reply to John Jeffries’ recent article in the Supreme Court Review develops two major themes. First, I invoke... more This reply to John Jeffries’ recent article in the Supreme Court Review develops two major themes. First, I invoke institutional, precedential, and doctrinal factors to argue that the merits-first approach in qualified immunity adjudication impels judges to define constitutional rights narrowly. Second, I consider the larger normative question of where constitutional rights should be articulated. Jeffries views alternative remedial contexts as coequal for law articulation purposes. My view, in contrast, is that the context in which law is articulated is will inherently shape the substance of the law that results, and so we should examine the unique characteristics of a particular context in deciding whether it is desirable for law to be clarified there.

Making Rights

by Nancy Leong

92 Boston University Law Review ____ (2012)

This Article fills an unacknowledged void in the literature by specifying the conditions under which constitutional... more This Article fills an unacknowledged void in the literature by specifying the conditions under which constitutional rights-making should take place. Ideally, constitutional rights-making should occur simultaneously in multiple remedial, factual, and procedural contexts; in reality, however, rights are undesirably confined to a single context. This situation has negative consequences for the endeavor of constitutional rights-making.

As a case study in rights-making, this Article offers a comprehensive quantitative and qualitative analysis of the Fourth Amendment. It presents an original data set cataloging every instance of Fourth Amendment rights-making between 2005 and 2009. That data set shows that most areas of Fourth Amendment doctrine are litigated either in suppression hearings or in civil actions for money damages - rarely both - even though in theory both remedies are available for each violation. This Article then describes the way this phenomenon distorts rights by developing a comprehensive, precedent-based account of three areas of Fourth Amendment doctrine: investigatory stops, excessive force, and unlawful detention.

This original analysis lays the groundwork for a broader conclusion: rights made solely in a single context are distorted by the idiosyncrasies of that context. Any context emphasizes certain interests and circumstances at the expense of others, and when rights are made only in a single context, those interests and circumstances deform the right over time. By contrast, rights made in multiple contexts are richer, more balanced, and more comprehensive. The Article shows that this phenomenon is not limited to the Fourth Amendment by surveying several rights where the existence of single or multiple litigation contexts affects the substance of the right.

Provocatively, the Article then argues that we should not treat context as inevitable: if too much or too little rights-making is occurring in a particular context, judges and legislators can and should change the rate of rights-making by increasing the availability of remedies in the desired context and eliminating other barriers to litigation. A substantial scholarly literature documents the effect of remedial availability on the rate of litigation in a particular context, but none of it has yet suggested that we should adjust remedies if we think it would benefit the rights-making endeavor to do so. This Article therefore begins the project of envisioning how we might adjust remedies intentionally to produce better rights-making.

The Open Road and the Traffic Stop

by Nancy Leong

64 Florida Law Rev. ____ (forthcoming 2012)

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents... more American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop - a judicially-authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. This paper examines the cultural texts - books, movies, songs - celebrating the open road and juxtaposes them against those documenting the traffic stop. The traffic stop, I conclude, interrupts the open road narrative closely associated with the American dream. Those stopped most frequently - in particular, racial minorities - are consequently denied full participation in an abiding national fantasy.

The Saucier Qualified Immunity Experiment: An Empirical Analysis

by Nancy Leong

36 Pepperdine Law Review 667 (2009)

This paper provides an empirical analysis of the impact of the approach to qualified immunity that the Supreme Court... more This paper provides an empirical analysis of the impact of the approach to qualified immunity that the Supreme Court first suggested in Siegert v. Gilley and later made mandatory in Saucier v. Katz. That approach dictates that lower courts should resolve constitutional issues prior to deciding whether a government official is shielded from liability by qualified immunity. A primary justification for this sequencing approach is the notion that where courts decide that constitutional law is not clearly established, and thus qualified immunity is available, future defendants can also escape liability for the same behavior. But the empirical analysis provided in this paper indicates that courts forced to resolve constitutional questions that, prior to Siegert and Saucier, they would have avoided, almost uniformly hold that no constitutional violation has occurred. To the extent that Siegert and Saucier have led to an increase in the articulation of constitutional law, therefore, this increase has solely benefited defendant government officers.

Advances in cognitive psychology suggest an explanation for courts' reluctance to hold that a constitutional violation has occurred yet then grant qualified immunity. Where the law is not clearly established, and thus a defendant will escape liability in any case, it may create cognitive dissonance to hold that a plaintiff's constitutional rights were violated. In anticipation of the Supreme Court's revisitation of the sequencing approach in Pearson v. Callahan, this paper suggests that sequencing should not be mandatory so that judges will not be forced to decide constitutional questions against this backdrop of dissonance.

Toom, Victor. 2012. "Bodies of science and law: forensic DNA profiling, biological bodies and biopower." Journal of Law and Society 39(1):150-66.

by NUCFS - Centre for Forensic Science

The paper is part of the Special Issue 'Material Worlds: Intersections of Law, Science, Technology, and Society', edited by Chris Lawless and Alex Faulkner.

How is jurisdiction transferred from an individual’s biological body to agents of power such as the police, public... more How is jurisdiction transferred from an individual’s biological body to agents of power such as the police, public prosecutor and judiciary, and what happens to these biological bodies when transformed from private into public objects? These questions are examined by analyzing bodies situated at the intersection of science and law. More specifically, the transformation of ‘private bodies’ into ‘public bodies’ shall be analyzed by going into the details of forensic DNA profiling in the Dutch jurisdiction. It will be argued that various ‘forensic genetic practices’ enact different ‘forensic genetic bodies’. These enacted forensic genetic bodies are connected with various infringements of civil rights, which become articulated in exploring these forensic genetic bodies’ ‘normative registers’.