NewYorkUniversity
LawReview

Topics

Civil Rights

Results

The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law

Cary Franklin

This Article argues that the anti-stereotyping theory undergirding the foundational sex-based equal protection cases of the 1970s, most of which were brought by male plaintiffs, has powerful implications for current controversies in sex discrimination law which have long been obscured by the dominant narrative about these cases. For decades, scholars have criticized Ruth Bader Ginsburg for challenging the constitutionality of sex-based state action in cases featuring male plaintiffs. They have argued that the predominance of male plaintiffs caused the Court to adopt a narrow, formalistic conception of equality incapable of rectifying the subordination of women. This Article offers a new account of the theory of equal protection animating Ginsburg’s campaign. It argues that her decision to press the claims of male plaintiffs was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes. This “anti-stereotyping” theory drew on the arguments of transnational movements for sex equality that emerged in the 1960s, including the movement to combat sex-role enforcement in Sweden and the women’s and gay liberation movements in the United States. The Burger Court incorporated the anti-stereotyping principle into sex-based equal protection law in the 1970s, but the significance of this doctrinal shift has long been overlooked, in part because the Court initially applied the new doctrine only in a limited set of domains. In recent years, the Court has extended anti-stereotyping doctrine beyond the provisional limitations established in the 1970s and in ways that are deeply relevant to questions at the frontiers of equal protection law today.

The Other Loving: Uncovering the Federal Government’s Racial Regulation of Marriage

Rose Cuison Villazor

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

Michael A. Helfand

This Article considers a trend toward what I have termed the “new multiculturalism,”
in which conflicts between law and religion are less about recognition
and symbolism and more about conflicting legal orders. Nothing typifies this trend
more than the increased visibility of religious arbitration, whereby religious groups
use current arbitration doctrine to adjudicate their disputes not in U.S. courts and
under U.S. law, but before religious courts and under religious law. This dynamic
has pushed the following question to the forefront of the multicultural agenda:
Under what circumstances should U.S. courts enforce arbitration awards issued by
religious courts in accordance with religious law? Indeed, with growing skepticism
regarding the oppressive potential of religious majorities, critics have questioned
whether religious arbitration has any place in a regime dedicated to individual liberties.
By contrast, this Article contends that current arbitration doctrine can meet
the challenges of the new multiculturalism. To do so, this Article makes two concrete
policy recommendations: (1) courts should redefine the scope of enforceability
of religious arbitration awards by limiting the application of public policy to vacate religious arbitration awards; and (2) courts should expand the application of
the unconscionability doctrine to void religious arbitration agreements.

Untangling the Twombly-McDonnell Knot: The Substantive Impact of Procedural Rules in Title VII Cases

Angela K. Herring

Lower courts are still sorting out the consequences of the Supreme Court’s decisions
in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which together
heralded a heightened factual pleading standard. Though many have focused on
the impact of the new standard on plaintiffs facing significant information asymmetries,
this Note focuses on the potential substantive impact on federal civil rights
claims resulting from application of the Iqbal standard. Specifically, this Note
argues that, when strict interpretations of the evidentiary standards used in claims
based on the McDonnell Douglas framework clash with a stronger factual pleading
standard, the effects can be distortive, closing out theories of discrimination for
which there was relief before Iqbal.

Reviewing potential solutions, this Note concludes that the most significant source
of the distortion is in the evidentiary standards themselves and argues that a more
practical and less rule-oriented approach can keep the civil rights laws broad in
reach while requiring a reasonable level of factual pleading.

Life Without Parole: An Immigration Framework Applied to Potentially Indefinite Detention at Guantanamo Bay

Laura J. Arandes

The Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo
Bay have the right to challenge their detention in habeas corpus proceedings and
that the courts hearing these claims must have some ability to provide “conditional
release.” However, in Kiyemba v. Obama, the United States Court of Appeals for
the District of Columbia ruled that if a detainee cannot be released to his country of
origin or another country abroad, a court sitting in habeas cannot grant the
detainee release into the United States. The court based its determination on the
assumption that the plaintiffs’ request for release implicated “admission,” generally
considered within the purview of the political branches and inappropriate for judicial
review. This Note argues that “parole,” a more flexible mechanism for release
into the United States, is not limited by the admission precedents requiring extreme
deference. This Note then surveys cases in which the judiciary has granted parole as
a remedy, and argues that courts have done so primarily in cases of executive misconduct.
Thus, courts confronting requests for domestic release from executive
detention without a legal basis should consider parole as a remedy distinct from
admission—one that serves a valuable purpose in maintaining a meaningful check
on the Executive.

The Promise of Mancari: Indian Political Rights as Racial Remedy

Addie C. Rolnick

In 1974, the Supreme Court declared that an Indian employment preference was
based on a “political rather than racial” classification. The Court’s framing of Indianness
as a political matter and its positioning of “political” and “racial” as
opposing concepts has defined the trajectory of federal Indian law and influenced
common sense ideas about what it means to be Indian ever since. This oppositional
framing has had specific practical consequences, including obscuring the
continuing significance of racialization for Indians and concealing the mutually
constitutive relationship between Indian racialization and Indian political status.
This Article explores the legal roots of the political classification doctrine, its
ongoing significance, and the descriptive limits and normative consequences of the
ideas that it contains. Specifically, this Article argues that the political classification
doctrine constructs race as an irrelevant matter of ancestry and Indianness as a
simple matter of civic participation. This Article suggests a new framework for considering
Indian issues and federal Indian law that draws on a more robust and
realistic understanding of both race and Indianness to acknowledge the cyclical
relationship between Indian racialization and Indian political status.

Neutralizing the Gendered Collateral Consequences of the War on Drugs

Marne L. Lenox

As a result of the War on Drugs, women are disproportionately impacted by the civil sanctions resulting from felony drug convictions. While legislation imposing collateral consequences of felony drug convictions does not explicitly discriminate against women, these laws reflect sex-based institutional biases and are thereby unequal in effect. While some statutes permit a disparate impact theory of sex discrimination, there exists no statutory protection for women in the context of collateral consequences. And because the Equal Protection Clause of the Fourteenth Amendment does not adequately protect against gender-neutral legislation that adversely affects women, raising a constitutional claim is not a viable alternative to statutory protection. In response, this Note sets forth two separate—constitutionally sound—proposals for legislative reform. First, I suggest that in light of historic sex discrimination, a remedial sex-based exemption from penalties imposed by collateral consequences is in order. In recognition of the Court’s distaste for sex-based legislation, however, I alternatively recommend that Congress exempt from collateral penalties ex-offenders who serve as the primary caretakers of their children.

Entrenching Privacy: A Critique of Civil Remedies for Gender-Motivated Violence

Lauren M. Gambier

In 2000, the Supreme Court in United States v. Morrison struck down a provision of the Violence Against Women Act (VAWA) that enabled victims of gender-motivated violence to bring civil suits against their attackers in federal court. In the wake of that decision, several states and localities have created similar remedies, and there has been a great deal of scholarly discussion of ways to craft a federal civil rights remedy that comports with the Constitution. The decision to create the federal provision stemmed from Congress’s recognition that violent crimes against women are systematically under-enforced or unenforced: presumably, the comparable state remedies were also intended to address this problem. Such remedies have received considerable scholarly support. In this Note, I argue that this continued emphasis on civil remedies for victims of gender violence is both pragmatically and normatively problematic. I argue that reliance on private civil remedies to address law enforcement failure reinforces the traditional separation of women from civil society and their relegation to the private sphere. This same relegation of women to the private sphere, I posit, also underlies the continued failure of the state to protect women from violent crime. As such, any serious efforts to address the continued prevalence of gender-motivated violence must focus not on private alternatives to inadequate law enforcement, but on changing the understanding of the relationship between women and the state that underlies the state’s continued failure to protect them.

Intentional Blindness

Ian Haney-López

Since the early 1970s, the Fourteenth Amendment’s emancipatory potential has dramatically eroded, with rapid plunges followed by ever-lower plateaus. In 2007, we entered another cycle of precipitous devolution. Today, this latest drop seems to be accelerating along two supposedly distinct tracks: intent doctrine and colorblindness.

Ostensibly, the search for discriminatory intent provides a means of ferreting out unconstitutional racial discrimination. In contrast, colorblindness subjects race-conscious laws to strict scrutiny whether their impetus is benign or invidious, rendering intent irrelevant. On and off the Supreme Court, supporters and critics spar over whether these doctrines fulfill the Fourteenth Amendment’s guarantee of equal protection. Nevertheless, both sides accept the seemingly fundamental division in racial jurisprudence between intent and colorblindness.

This Article challenges the notion of a divided equal protection. First, it shows that before the advent of colorblindness, intent doctrine formed the undivided—and reasonably efficacious—heart of equal protection. Intent doctrine once worked tolerably well for detecting the mistreatment of non-Whites, and also in distinguishing benign from invidious discrimination—the two tasks at which current equal protection grievously fails. Second, it demonstrates that colorblindness developed in response to intent doctrine, and in turn led to a disastrous reworking of that approach. Intent and colorblindness are not separate, but inextricably intertwined. Rather than seeing equal protection today as bifurcated, we should understand it as again unified, though under what might best be termed “intentional blindness.”
Combining the names of the two doctrines, this portmanteau captures the marrow of the Court’s racial jurisprudence—which seems intentionally blind to the persistence of racial discrimination against non-Whites. It is this resistance that connects the current assaults on antidiscrimination statutes to the impending demise of affirmative action. It also links both of these to a larger history of reversals in equality law spanning four decades.

Beyond the Private Attorney General: Equality Directives in American Law

Olatunde C.A. Johnson

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.

1 5 6 7 8 9 11