Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education – Note by Donald A. Thompson

From Volume 81, Number 4 (May 2008)
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The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.


 

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Remedies for California’s Death Row Deadlock – Article by Judge Arthur L. Alarcón

From Volume 80, Number 4 (May 2007)
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The unconscionable delay in the disposition of appeals and habeas corpus proceedings filed on behalf of California’s death row inmates continues to increase at an alarming rate. It is now almost double the national average. Procedural changes must be made to the manner in which death penalty judgments are reviewed to avoid imprisoning a death penalty inmate for decades before the condemned prisoner’s constitutional claims are finally resolved.

This Article identifies the woeful inefficiencies of the current procedures that have led to inexcusable delays in arriving at just results in death penalty cases and describes how California came to find itself in this untenable condition. It also recommends structural and procedural changes designed to reduce delay and promote fairness. These recommendations include: transferring exclusive jurisdiction over automatic appeals from judgments of death away from the California Supreme Court to the California Courts of Appeal; requiring that capital case state habeas corpus petitions be filed in the trial court with the right to appeal to the California Courts of Appeal, rather than filing the petitions with the Supreme Court in the first instance; providing adequate training and compensation for counsel appointed to represent indigent death row inmates; and providing continuity of counsel for state and federal habeas corpus proceedings. These changes would significantly reduce delay and promote a more just resolution for death penalty inmates and society.


 

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The Cul De Sac of Race Preference Discourse – Article by Christopher A. Bracey

From Volume 79, Number 6 (September 2006)
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Despite over a quarter century of affirmative action policy, public endorsement of the practice by leading American institutions, and validation by the United States Supreme Court, the relevance of race in university admissions and hiring decisions remains a persistent source of conflict. Disagreement, however, has not produced a particularly robust or constructive public dialogue on this issue. Indeed, public conversation regarding the appropriateness of race preferences remains mired in an unhealthy and unproductive impasse.

The breakdown usually, but not always, occurs along traditional ideological lines. Progressive proponents generally endorse the use of race preferences as a measured response to the perceived malign status quo of American race relations. They highlight myriad ways in which individual and institutional practices have, over time, worked to entrench the subordinated status of racial minorities and point to race preferences as an example of the kind of robust, substantive, and race-conscious response that “justice” demands. Conservative opponents generally acknowledge persistent racial disparities in health, wealth, and society, but point to substantial advances in modern race relations as a testament to the virtues of colorblindness and formal racial equality – virtues threatened by the reliance upon race when dispensing educational and employment opportunities and other social goods. Impassioned disagreement is inevitable, given the extended legacy of racial oppression, conflicting perceptions of racial injustice, and divergent visions of what a racially just society entails. What might have been the subject of robust exchanges of ideas, however, now cycles stubbornly and uncomfortably within a caustic, ideological cul-de-sac.


 

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Title VII’s Midlife Crisis: The Case of Constructive Discharge – Article by Martha Chamallas

From Volume 77, Number 2 (January 2004)
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Understanding Title VII law has never been easy. From the beginning, there have been sharp disputes about the meaning of “discrimination” under the Act and the degree to which employers should be held strictly accountable for discriminatory actions of supervisors and employees. Early debates tended to pit those who envisioned the Act as a results-oriented measure aimed at ending racial and gender hierarchies in the workplace against those who viewed the legislation primarily as a process-oriented check against the use of race or gender as a factor in employer decisionmaking. The former generally endorsed a broad interpretation of the Act generous to plaintiffs, while the latter tended to be more receptive to interpretations favoring employers.

The fault lines in contemporary scholarship are much harder to characterize. Contemporary doctrinal debates have tended to focus narrowly on particular statutory provisions or modes of proof, and emerging theories do not always line up as predictably along ideological lines. The interplay between Congress and the Supreme Court has only made things messier: On several occasions, Congress has stepped in to express its disapproval of conservative Court rulings, without, however, dramatically changing the prevailing judicial approach to interpreting the Act. The last major statutory revision was the 1991 Civil Rights Act, a sweeping reform that affected each major framework of liability, introduced jury trials, and significantly altered the remedial scheme of the Act.


 

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Through the Looking Glass: Racial Jokes, Social Context, and the Reasonable Person in Hostile Work Environment Analysis – Note by Melissa K. Hughes

From Volume 76, Number 6 (September 2003)
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Communicating ethnic animosity through humor has long been an American tradition. As early as the seventeenth century, Americans have utilized racial jokes to ridicule the culture, dialect, dress, and traditions of each new wave of immigrants. Images of “little black Sambo,” “the drunken Irishman,” and “the stupid Pole” have helped to define which ethnic groups are accepted and which remain on the fringe of society. Although racial jokes convey a wide variety of messages ranging from friendly teasing to flagrant racism, when channeling racism and hostility they comprise one of the greatest weapons in the “repertory of the human mind.” Furthermore, while many dismiss jokes as a nonserious form of communication, racial jokes historically have played an important role in the development of American race relations.

In the decades following the civil rights movement, minority groups successfully applied political and social pressure to persuade Americans to oust racial jokes from the public sphere. Joseph Boskin, a leading scholar on ethnic humor, contends that despite the invention of politically sensitive speech, the popularity of racial jokes in the closing decades of the twentieth century skyrocketed nationwide. Ida L. Castro, the Chairwoman of the Equal Employment Opportunity Commission (“EEOC”) stated, “[t]he Commission is seeing a disturbing national trend of increased racial harassment and retaliation at workplaces across the country. This harassment at work sites includes egregious behavior which is reminiscent of the days of the civil rights movement.” This simultaneous resurgence of racial jokes and harassment reveals that discrimination remains a pressing social and legal issue.


 

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Race, Reasonableness, and the Rule of Law – Note by Aaron Goldstein

From Volume 76, Number 5 (July 2003)
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In recognition of the fearsome powers faced by defendants, the criminal justice system has built into it a multitude of counterbalancing defendants’ rights. There exists, however, a special breed of criminal trial involving a third and even weaker voice, a voice that may not even be heard during the trial. Criminal defendants who claim they committed acts of violence only in self-defense place their victims on trial – sometimes rightfully, sometimes to avoid well-deserved guilt. The wealth of protections afforded to criminal defendants give them wide latitude to attack victims who do not enjoy such robust protections.

While a rich dialogue regarding victims’ rights in general already exists, this Note focuses on a particular type of victim and a particular type of attack. This Note deals with the play of the race card by criminal defendants to justify their decision to maim or kill, and argues that appeals to racial stereotypes ought to be excluded under the Rules of Evidence. Not only would this serve to protect the rights of the victim to a fair assessment of the victim’s actions at trial, but it would also have positive reverberations among law enforcement and private citizens outside the court. Such evidentiary rules would put everyone on notice that race is no basis for taking a life.

Part I of this Note discusses particular instances where racial stereotypes have played a part in a claim of self-defense. Part II provides a normative argument for why evidence regarding a victim’s race ought to be excluded. This Part also differentiates claims of self-defense that involve appeals to race from claims that do not rely on socially constructed generalizations regarding race, gender, and so on. Part III provides a legal basis and a formal proposal for a rule excluding evidence of the victim’s race as well as suggestions for how such exclusions might be implemented.


 

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