Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways that the civil rights concept itself may fall short of addressing the kinds of discrimination that LGBT persons experience. I approach this question by inviting readers to engage in a thought experiment of designing anti-discrimination laws around the experiences of persons who suffer sexuality-linked discrimination, rather than trying to shoehorn those life experiences into a standard anti-discrimination model. I conclude that there are points of friction between sexuality and civil rights that bubble beneath the surface of advocates\u27 longstanding efforts to fold sexual orientation into the civil rights model

The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration

The erosion of civil rights across our nation over the past six years is the result of willful neglect and calculated design. The Bush administration continues to use the courts and the judicial appointment process to narrow civil rights protections and repeal remedies for legal redress while allowing the traditional tools of the executive branch for civil rights enforcement to wither and die. The resulting inequality of opportunity, deteriorating civil liberties, and rising religious and racial discrimination are sad commentaries on the priorities of the current administration

White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co.

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had focused primarily on the Fourteenth, rather than the Thirteenth, Amendment, and on public actors, rather than on private actors. Further, by applying the Civil Rights Act of 1866 to private discrimination, Jones acknowledged the nineteenth-century roots of economic arguments that scholars use today to critique the relationship between private and public power. Yet, despite its importance, Jones largely has been relegated to a squib in textbooks. Few scholars have attempted to analyze Jones in light of other, analogous types of discriminatory behavior by private groups--especially cartel behavior. And, unlike more famous civil rights cases, like Brown v. Board of Education, almost nothing is written about the people of Jones--the litigants, the lawyers, and the judges behind the caption. This Article addresses that neglect. First, it ties economic theories about racial discrimination together with the history of the Civil Rights Act of 1866 and its subsequent interpretation in Jones. It explains how Congress\u27s exercise of Thirteenth Amendment power to govern private economic relationships during Reconstruction gave important, but unacknowledged, intellectual credence to the antitrust movements of the late nineteenth and early twentieth centuries. Second, it explores the human story behind Jones, tracking the narrative of the Joneses, their counsel, the judges, and their lives after the decision. Finally, it explains how Jones\u27s recognition of the interrelationship between public and private coercion can help scholars, lawmakers, and jurists define the contours of Thirteenth Amendment power

Civil Rights Procedural Problems

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements. Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent manifestations of judicial decisionmaking that has disadvantaged civil rights and employment discrimination plaintiffs over the past fifteen years. Moreover, the determinations encompass restrictive interpretations by the Supreme Court and lower federal courts of the Federal Rules of Civil Procedure, fee-shifting legislation, and procedural provisions in civil rights and employment discrimination statutes. In short, the whole picture for civil rights and employment discrimination litigation has been more than the sum of the procedural parts. The federal judiciary\u27s decisionmaking has adversely affected civil rights and employment discrimination plaintiffs, who Congress intended to serve as private attorneys general, but whose lack of resources for litigating often makes them risk averse. Because these judicial determinations threatened the progress that minorities and women have achieved through litigation, Congress enacted the new civil rights and employment discrimination legislation which rectifies or ameliorates certain procedural difficulties faced by civil rights and employment discrimination plaintiffs. Unfortunately, Congress did not treat a number of important procedural problems that significantly disadvantage civil rights plaintiffs. This essay addresses those omissions. The article initially examines procedural developments that have detrimentally affected civil rights plaintiffs over the last decade and a half. The piece then analyzes the Civil Rights Act of 1991, emphasizing how that measure fails to remedy numerous procedural complications which confront these plaintiffs. Accordingly, the essay affords suggestions for additional change that would respond to the procedural difficulties which remain

Toward a Jurisprudence of the Civil Rights Acts

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding-–basically, that “civil rights” are “antidiscrimination rights”-–is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself. First, on the general point: some of the “civil rights” sought or held across our history have not been antidiscrimination rights of any sort at all: labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as “civil rights,” and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. But furthermore, even the “civil rights” which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion, simply our rights not to be discriminated against on the basis of impermissible characteristics. Rather, the “civil rights” of which we cannot be discriminatorily deprived, whether originating in the ‘64 Act or elsewhere, are, after all, rights to something: a right to vote, or to physical security, or to enter contracts, or to own, buy or sell property, or to legal recourse in the aftermath of a wrong committed against us, or to write a will, or to be considered for or to hold down a job and to be paid fairly for our labor, or to the use of a restaurant or a hotel or a city bus, or to a public education, or to marry whom we love. And, these are just some of the public goods that have been recognized at various times as “civil rights,” of which we cannot be deprived by discriminatory action. Even if just that much is right, then the “civil right” protected by all of our Civil Rights Acts, including the ‘64 one, is considerably more complex, jurisprudentially, than the conventionally legalistic and formulaic equation of “civil rights” with “antidiscrimination rights” suggests. Minimally, the “civil right” recognized or protected by the various Civil Rights Acts is almost invariably a multilayered right, or a “right to a right”: it is a right to not be discriminatorily deprived of some underlying right. Only the first right in that phrase “a right to a right” is the antidiscrimination right. The second “right,” though, is the underlying civil right of which we cannot be discriminatorily deprived, and it is both itself complex, and highly variable: it might be a common law right, such as a right to enter contracts or sell property, or a statutory right, such as a right to vote, or simply a right to a social or public good, such as employment or educational opportunities, or the protection of a trustworthy police force against private violence. And, while we have generated a library of writing, and jurisprudence, and judicial opinions, on the nature of the first right in that phrase-–the right not to be deprived of various rights, on the basis of race, sex, and so forth-–we have devoted much less to the second: the nature of the underlying right of which we cannot be deprived. So, what is the jurisprudential nature of that right? What is a “civil right,” jurisprudentially, both with respect to the rights protected against discrimination by the Civil Rights Act of 1964, and more broadly? Again, and more generally, what is a “civil right”

Upholding the Rights of Citizens

Despite internment and discrimination; UMLaw\u27s first Asian-American graduate has spent a lifetime fighting for civil rights. Meet distinguished graduate Frank F. Chuman

Interjurisdictional property rights discrimination and civil war: Antebellum America

The purpose of this paper is to understand whether interjurisdictional property rights discrimination may be an impetus for civil war. I begin with an overview of literature on property rights, property rights regimes, and property rights discrimination. I then discuss the concepts of interjurisdictional and intrajurisdictional property rights discrimination. I suggest my theory that interjurisdictional property rights discrimination creates costs for discrimination losers from other jurisdictions. These costs affect expectations regarding relative gains, which may lead to discontent and transjurisdictional political violence. For empirical analysis, I analyze the jurisdictionally bifurcated property rights regime regarding slavery that existed between free and slave states in antebellum America. I assess the importance of the labor resource (slaves) to the Southern economy, the nature and costs of the jurisdictionally bifurcated property rights regime that developed regarding property rights in that resource, and how conflict over property rights in slaves spilled into secession and civil war. I conclude by drawing together the main points and the mechanism by which interjurisdictional property rights discrimination may serve as an impetus for civil war

The Torch (April 2017)

Civic and Community Engagement | Civil Rights and Discrimination | Education | Gender and Sexuality | Inequality and Stratification | Politics and Social Change | Public Policy | Race and Ethnicity Recommended Citation Baldwin, Brandon and Civil Rights Team Project, Torch (August 2013) (2013). Torch: The Civil Rights Team Project Newsletter. 58. http://digitalcommons.usm.maine.edu/torch/58 Disciplines Civic and Community Engagement | Civil Rights and Discrimination | Education | Gender and Sexuality | Inequality and Stratification | Politics and Social Change | Public Policy | Race and Ethnicityhttps://digitalcommons.usm.maine.edu/torch/1078/thumbnail.jp

Constitutional Law and Civil Rights

During the period covered by this survey, most of the constitutional law and civil rights cases considered by the Tenth Circuit Court of Appeals were discrimination actions brought under either section 1983 of the Civil Rights Act of 1871 or Title VII of the Civil Rights Act of 1964. Some of the other topics dealt with by the court were age discrimination, Indian rights, prisoners\u27 rights, drug paraphernalia, ballot access, religious freedom, and the supremacy clause

In the Wake of Ledbetter v. Goodyear Tire & Rubber Company: Applying the Discovery Rule to Determine the Start of the Limitations Period for Pay Discrimination Claims

14 These laws include Title VII of the Civil Rights Act of 1964,15 Section 1981 of the Civil War Reconstruction statutes,16 the Age Discrimination in Employment Act of 1967 (ADEA),17 the Equal Pay Act (EPA),18 and the Americans with Disabilities Act of 1990 (ADA).19 While the statutes define different types of discrimination, each addresses discrimination in employment and defines a limitations period in which an employee can bring a claim.20 With Title VII defining the paradigm, the first step in determining whether a claim is timely under any statute is determining when the discriminatory act takes place.21 To do that, one must identify with care the specific employment practice that is at issue