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On July 2, 1964, President Johnson signed into law the Civil Rights Act of 1964,' the most far-reaching civil rights legislation in history.Much has been written about the act, but almost without exception the writers have been concerned with the ban of discrimination in employment on the basis of race or color. But the most radical and troublesome characteristic of Title VII of the Civil Rights Act is its outlawing of employment discrimination based on sex. It is the purpose of this note to examine this largely ignored aspect of the act. The inquiry will first examine the regulation of sex discrimination generally under the federal constitution and federal and state laws.Emphasis here will be placed on the treatment of discrimination under the fourteenth amendment, the Railway Labor Act, the National Labor Relations Act and, of primary importance, the interaction of Title VII with the similar provisions of the Equal Pay Act of 1963. The legislative history of the inclusion of the word "sex" in Title VII will be examined, and a synopsis will be presented, to indicate the types of employment practices which have been deemed by the Equal Employment Opportunity Commission to be violative of the provision of the act. Finally, there will be an examination of the two aspects of the law which give rise to the greatest problems: the bona fide occupational qualification exception under which discrimination is permitted, and the relationship between Title VII, state fair employment practice laws, and state laws regulating the employment of women.

Lawyers in voting discrimination cases are fond of quoting Justice Frankfurter's dictum that "the [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination."' Unfortunately for historical accuracy and for the health of our society, this statement simply has been false for most of the century since the passage of that amendment. In the past fifteen years, however, a change has begun, and the right to vote without discrimination has gained substance. This Article is an effort to describe today's law of voting discrimination, and how that law developed. Because the present state of this area is so largely a product of its tortured history, it will be necessary to begin with a history of black enfranchisement. This history revolves chiefly about three major,short periods of dramatic change, separated by years of generally downward drift. For each of these periods, this Article will examine the varying response of the federal branches to the unceasing disfranchisement efforts of the states.

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities. Exploring these features has relevance for understanding the current stimulus. Key aspects of the stimulus entrench funding and programmatic structures that promote racial inequality, defer to states and localities rather than advance explicit civil rights rules and norms, and miss key opportunities to innovate to promote racial inclusion and equity. Yet, this Essay argues that even with these limitations, the stimulus presents opportunities for civil society groups to learn from the lessons of New Deal and postwar programs by using the stimulus to promote racial inclusion and equality. Indeed, this Essay shows that the magnitude of the stimulus is generating a new set of laws and regulatory institutions designed to promote transparency and accountability in federal spending. These interventions, this Essay suggests, provide promise for interrupting the mechanisms through which federal spending perpetuates inequality, and for leveraging the stimulus to advance racial inclusion.

The Civil Rights Act of 1964 [1] represented a seminal legislative accomplishment of the twentieth century. Its eleven titles addressed racial discrimination in voting (Title I), public accommodations (Title II), public facilities (Title III), public education (Title IV), publicly financed programs (Title VI) and employment (Title VII).[2] It sought to remedy legislatively the Jim Crow laws and practices that had long contributed to making blacks second-class citizens in America and it provided the Executive Branch tools, especially in Title III and VI, to help implement Brown v. Board of Education.[3] In view of the bill's focus on racial discrimination, one would expect the legislative discussion to have centered around the injustice of segregation and the burden it imposed on American society. Much of it did. Yet legislators devoted a substantial portion of their attention to constitutional issues relevant to the bill.

This Article identifies the most important issues which must be dealt with after Monell v, Department of Social Services, 436 U.S. 658 (1978), and attempts to resolve them. Section I considers what rules and practices are "official acts, policies and customs" subjecting a government to suit under Monell. The second section analyzes the possible defenses available to a city; it concludes that the good faith immunity afforded to executive officials should not be extended to government entities, but that such entities should be afforded a somewhat narrower defense. Section III discusses the scope of injunctive relief available in section 1983 actions against state officials. Finally, section IV urges that after Monell state law claims against cities can and should be tried in federal court when joined with section 1983 actions.

Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic' and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world. In this Article I will make four points. First, by way of background and overview, I will conclude that the goal of federalism is and should be to encourage and facilitate geographically-based political autonomy without placing at risk the interests of minorities within those autonomous areas. Second, I will examine federalism as a civil rights paradigm. My thesis is that federalism, as a political principle and as an institutional structure, is an important form of decentralization in decision making in the cause of autonomy, democracy, and freedom. There is, therefore, an essential complementarity between the principles of federalism and traditional principles of civil rights. At the same time, there is an inherent tension between those principles. The traditional civil rights paradigm protects individual liberties by resort to universalistic principles such as equal treatment regardless of race, religion, or gender. Federalism may protect minorities based not on universalistic norms, but upon ascriptive criteria such as geography or ethnicity

Social equity and public administration -- Marriage equality: a fundamental right -- Families, adoption, and assistive reproductive technology -- Sexual orientation and gender identity employment protections -- LGBTQ rights and the U.S. military -- Public accommodations, Title IX, and government ID -- Next steps.

I should perhaps state the assumptions from which my discussion proceeds. I view discrimination on the basis of race, color, national origin or creed as an intolerable practice and a mockery of our national aspirations whether it occurs in the field of employment or elsewhere. The continuation of such practices more than 100 years after the Emanicipation Proclamation seems to me a national disgrace whose elimination cannot longer await the general enlightenment of all parts of the nation. The full powers of government should be brought to bear against such discriminatory practices. And in my search for the most effective use to be made of governmental powers to that end the individual rights involved seem to me heavily to outweigh any argument for continued obeisance to "states rights"—particularly as the argument emanates from states dedicated to the denial of individual rights on grounds of race.

This Article discusses why the Thirteenth Amendment's reach extends beyond the institution of slavery and has important implications for civil liberties. The Amendment—in providing a mechanism to protect fundamental rights articulated in the Declaration of Independence and Preamble to the Constitution—not only ended slavery, but also created a substantive assurance of freedom. This Article reviews Thirteenth Amendment jurisprudence and shows that, despite substantial narrowing after its adoption, the Amendment is a source of sweeping constitutional power for enacting federal civil rights legislation. The Article also distinguishes congressional power under the Thirteenth Amendment from that under the Fourteenth Amendment and the Commerce Clause, demonstrating that the Thirteenth Amendment is a viable, and at times preferable, alternative for civil rights reforms. Finally, the Article suggests that recent U.S. Supreme Court jurisprudence limiting congressional Commerce Clause and Fourteenth Amendment Section 5 powers has increased the importance of the Thirteenth Amendment as an alternative strategy for civil rights legislation and litigation.

Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and immigrants. In addition, at the same time that calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This Article focuses on sexual assault by federal officials and considers, in particular, sexual assault of immigrants, including people living in or traveling to the United States to seek asylum. The #MeToo movement rightly has focused attention on the need for accountability by those who commit and facilitate gender violence. It has created a valuable moment for reflection and advocacy for laws and policies focused on prevention and on redress for victims and survivors. Social science makes clear that strong leadership and policies and practices holding both institutions and individuals accountable are key. Civil remedies, including remedies under civil rights laws, are an essential tool in the mix of needed responses. But advocacy efforts have not focused on the federal government's civil rights accountability for sexual assault committed by those who act in the federal government's name. The Bivens doctrine, which provides the avenue of redress for sexual assaults by federal officials as violations of constitutional rights, has been increasingly narrowed. It provides no mechanism for institutional accountability; with respect to individual accountability, the Supreme Court recently declared that "expanding the Bivens remedy is now a 'disfavored' judicial activity." This Article uses calls for reform of sexual harassment laws as a point of ...

Abstract: This Article discusses why the Thirteenth Amendment's reach extends beyond the institution of slavery and has important implications for civil liberties. The Amendment-in providing a mechanism to protect fundamental rights articulated in the Declaration of Independence and Preamble to the Constitution-not only ended slavery, but also created a substantive assurance of freedom. This Article reviews Thirteenth Amendment jurisprudence and shows that, despite substantial narrowing after its adoption, the Amendment is a source of sweeping constitutional power for enacting federal civil rights legislation. The Article also distinguishes congressional power under the Thirteenth Amendment from that under the Fourteenth Amendment and the Commerce Clause, demonstrating that the Thirteenth Amendment is a viable, and at times preferable, alternative for civil rights reforms. Finally, the Article suggests that recent U.S. Supreme Court jurisprudence limiting congressional Commerce Clause and Fourteenth Amendment Section 5 powers has increased the importance of the Thirteenth Amendment as an alternative strategy for civil rights legislation and litigation.

Should a private, religious university lose its tax-exempt status because it bans interracial dating? Should a religious school fire a pregnant married teacher on religious grounds despite the ban against gender discrimination in employment? Should a religious social service agency be exempt from a state regulation banning discrimination in the delivery of social services on the basis of sexual orientation? This Article argues that courts and legislatures have granted and refused exemptions for religious groups from civil rights laws in response to historical social movements, producing the differential treatment of race, gender, and sexual orientation laws. This Article identifies avenues, informed by virtue ethics and value-added negotiation, for negotiating solutions other than full exemptions or no exemptions. Pursuing productive stances toward clashes over religious exemption claims is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.

This article compares and contrasts the way Gandhi understands the right to civil disobedience with the way this right is understood by some contemporary liberals. Some of the implications of the right to civil disobedience are also discussed. The right to civil disobedience implies that the authorities should extend some tolerance to civil disobedients not only when they are correct, but also when they are reasonably mistaken in their views. Tolerance here does not involve preventing civil disobedients from breaking the law, and implies that when civil disobedients break the law, they have a claim not to be punished or have their punishment reduced. Of course such claims have to be balanced against other considerations, such as the need for deterrence.