Tag: Civil Rights

Rethinking Donor Disclosure After the Proposition 8 Campaign – Note by David Lourie

From Volume 83, Number 1 (November 2009)
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Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”

 

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Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now – Article by Jane S. Schacter

From Volume 82, Number 6 (September 2009)
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Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage—Perez v. Sharp, decided by the California Supreme Court in 1948—was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.

 

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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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