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  • We Need Inquire Further: Normative Sterotypes, Hasidic Jews, and the Civil Rights Act of 1866

    According to modern Supreme Court opinions, The Civil Rights Act of 1866 prohibits only "discrimination [against members of protected groups] solely because of their ancestry or ethnic characteristics." The Court refers to this type of discrimination as 'racial animus.' In the 1987 case Shaare Tefila Congregation v. CobbJews were recognized as a protected ethnic group under these statutes, but the Supreme Court also reaffirmed that The Civil Rights Act only prohibits 'ethnic' or 'ancestral' discrimination. The Act does not encompass religious discrimination. Yet, despite the Supreme Court's rulings, the district courts held that both Rabbi LeBlanc-Sternberg's and Mr. Singers' allegations of discrimination based on specific Jewish religious practice were actionable under The Act. This Note will document and explain this paradox.

  • Dislocated and Deprived: A Normative Evaluation of Southeast Asian Criminal Responsibility and the Implications of Societal Fault

    This Note argues that certain Southeast Asian defendants should be able to use their families' refugee experience as well as their own economic and social marginalization in the U.S. as a partial excuse for their criminal acts. This argument draws its strength from both the socioeconomic deprivation of much of the Southeast Asian community and the linking of this reality to a careful analysis of the moral foundations of the criminal law. In essence, the American criminal justice system, which draws much of its moral force to punish from the theory of retributivism, cannot morally justify the full punishment of a large portion of the Southeast Asian community. It is precluded from doing so by American society's contribution, in one form or another, to many of these defendants' criminal conduct.

  • The Diversity Rationale: Unprovable, Uncompelling

    Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

  • Justifying the Disparate Impact Standard Under a Theory of Equal Citizenship

    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 to justify affirmative action in higher education admissions programs. It concludes by pointing out the inadequacies of alternative effects-based theories. Part III makes the case that an equal citizenship theory, based on a moral interpretation of the Fourteenth Amendment, best justifies the disparate impact standard. Finally, Part IV confronts some of the institutional issues underlying the equal citizenship theory as a justification for the disparate impact standard and suggests that Congress should have power under Section V both to interpret the Equal Protection Clause and to enact legislation that promotes equal citizenship.

  • After Georgia V. Ashcroft: The Primacy of Proportionality

    This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. In Shirt, American Indians in South Dakota suffered a history of voting discrimination, racially polarized voting, and a dearth of safe districts; while in Session, Blacks and Latinos in Texas at least possessed a larger proportion of safe districts. What emerges from the comparison, then, is the tendency of proportionality to neutralize history and polarization. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations—details closely related to how proportionality is measured. Finally, Part III discusses substantive representation, the ideology that drove much of Ashcroft's analysis. Framing it as a symptom of nonpolarized voting, this Note concludes that endorsement of substantive representation as a device to achieve colorblindness will obscure the causes of polarization.

  • Decline of Title VII Disparate Impact: The Role of the 1991 Civil Rights Act and the Ideologies of Federal Judges

    This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood that such plaintiffs will successfully challenge facially-neutral employment practices. Two significant observations may be gleaned from Part II: first, that the ideologies of judges on the appellate panels deciding Title VII cases exert a far more significant impact on case outcomes in the post-1991 period; and, next, that one important explanation for the decline of successful disparate impact claims is that politically conservative judges decide a greater percentage of recent cases. Based on these findings, Part III argues that Congressional action to clarify disparate impact standards is essential to preserve Title VII as a conduit through which African Americans can seek redress for discrimination.

  • Felon Disenfrachisement Laws: Partisan Politics in the Legislatures

    This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

  • Black Musical Traditions and Copyright Law: Historical Tensions

    This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence embodied copyright's clash with the Black musical tradition. Part VII portrays the history of the hip-hop musical phenomenon and illustrates how copyright's negative treatment of digital sampling continues to denigrate the Black musical tradition. Part VIII discusses the need for a more culturally inclusive copyright regime. Part IX concludes the Note by discussing the importance and benefits of amending the current copyright laws.

  • Fair and Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis

    Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher education context, be fashioned such that admissions policies are made as equitable as possible while not undermining a school's ability to achieve its legitimate admissions goals. The proper necessity standard would grant schools latitude to define their institutional goals, but at the same time require that their admissions criteria be the least discriminatory methods of achieving these goals. Finally, Part III shows that a court can feasibly and effectively apply disparate impact analysis to admissions processes despite their complexity and variety.

  • Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not

    Part I of this Note describes the substance of prison grooming policies and provides a sampling of cases that have challenged these policies under the Equal Protection and Free Exercise Clauses. Part II explores three theories of discrimination that describe certain types of discriminatory conduct that could be prohibited by the Equal Protection and Free Exercise Clauses. These theories inform the definition of "equal protection of the laws" and impact the analysis of equal protection challenges to prison grooming policies. Part III explores the "religious exemptions" doctrine and explains how courts have interpreted the protections offered to religious groups by the Free Exercise Clause. This Part also explores the ways in which the development of the Free Exercise Clause has mirrored the development of the Equal Protection Clause and argues that these similarities justify a similar analysis of challenges to prison grooming policies brought under either theory. Part IV analyzes prison grooming policies by interpreting the constitutional provisions to prohibit oppressive discriminatory conduct directed at minority group members. Part V concludes this Note by arguing that adoption of an anti-oppression theory of discrimination in the analysis of Free Exercise and Equal Protection claims requires courts to strike down prison grooming policies.