Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

Justia columnist and Hofstra law professor Joanna Grossman comments on recent and past developments regarding the Defense of Marriage Act (DOMA), which sought to ignore valid same-sex marriages for federal purposes, such as the receipt of federal benefits. Grossman covers the beginning of DOMA; describes DOMA’s effect, including the legal havoc it wrought; and notes recent developments that she predicts will ultimately spell the death of DOMA. With four federal courts striking down DOMA’s key provision, Section Three, in just the last six months—in decisions that Grossman describes in detail—and the Department of Justice refusing to defend the law, Grossman suggests that the law cannot stand much longer.

In Part Two of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman continues her discussion of the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result. Here, Grossman stresses, among other points, that a police investigation of alleged sexual harassment or assault is no substitute for the required school investigation that is mandated.

In Part One of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman discusses the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result.

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, the federal civil rights statute that bans sex discrimination in federally-funded education programs. Grossman and Brake focus on the area in which Title IX has had its biggest impact, athletics, and explain its impact on college women’s and high school girls’ opportunities in sports. They reveal the secrets of Title IX’s success, including its refusal to take current, status quo levels of girls’ and women’s interest in sports as fixed or natural and thus to cap opportunities at current levels. Grossman and Brake also comment on Title IX’s recent history, criticizing the George W. Bush Administration for undermining the law, and praising the Obama Administration for properly enforcing it. Finally, they describe the stumbling blocks that still remain when it comes to full Title IX enforcement.

Justia columnist and Hofstra law professor Joanna Grossman comments on two recent rulings that invalidate applications of a federal law—the Defense of Marriage Act (DOMA)—purporting to reject same-sex marriages. One ruling resolves a set of consolidated cases, and was issued by the U.S. Court of Appeals for the First Circuit. That ruling is entitled Commonwealth v. U.S. Department of Health and Human Services. The other ruling is Windsor v. U.S., a decision from a New York-based federal district court. After providing background on DOMA, Grossman analyzes the claims that were put forth in the cases that led to the two recent decisions, and argues that both courts were right to invalidate the applications of DOMA that were before them. She also discusses three U.S. Supreme Court precedents that are relevant to these issues.

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent important decision from the Connecticut Supreme Court. As Grossman explains, the case arose when a manufacturing company failed to take action to stop the ceaseless name-calling that the plaintiff endured in his workplace regarding his sexual orientation. Even worse than the slurs themselves, some of the plaintiff’s tormentors would say the slurs while standing right behind the plaintiff while he was operating heavy machinery. Grossman begins by sketching the legal landscape (federal and state) regarding sexual orientation discrimination, and then goes on to focus on the law of Connecticut, where the employer was located, and the result the Connecticut Supreme Court reached in the case. Grossman also questions why the employer took the case all the way up to Connecticut’s high court when the illegality of the acts involved was quite clear.

Justia columnist and Hofstra law professor Joanna Grossman comments upon the proposed Pregnant Workers’ Fairness Act (PWFA), which was recently introduced in the House of Representatives. Grossman explains that, if the bill becomes law, it will guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of their job, as long as the accommodation does not impose an undue hardship on the employer. Grossman explains the limited protections that federal law currently offers pregnant women, how even those protections have been narrowed by courts, and why further protections are needed. Grossman describes the holdings of relevant Supreme Court cases, explains the provisions of the 1978 Pregnancy Discrimination Act (PDA), and argues that the PDA’s protections are markedly insufficient, especially in light of the courts’ narrowing of pregnant women’s rights. Grossman concludes that the passage of the PWFA is urgently needed to ensure fair treatment for pregnant workers.

Justia guest columnist Anjali Dalal, Postdoctoral Associate in Law and Google Fellow, Information Society Project at Yale Law School, comments on the Cyber Intelligence Sharing and Protection Act (CISPA). Dalal argues that while cybersecurity is a very genuine concern for the U.S., CISPA’s approach is not the way to address that concern. Dalal makes four key points to support her thesis, contending that (1) CISPA could reach common, otherwise legal Internet activities; (2) that information received from private companies under CISPA could be used for purposes other than cybersecurity; (3) that CISPA appears to effect an end-run around the Fourth Amendment; and (4) that CISPA subordinates civil-liberties protections to national security concerns. Dalal also describes the next steps that we are likely to see in the battle over CISPA.

Justia columnist and Hofstra law professor Joanna Grossman explains the EEOC ruling that discrimination against a transgender individual is sex discrimination under Title VII and related law. Grossman begins by describing the facts of the case that led to the EEOC ruling, and then goes on to take a close look at the intersection of Title VII, transgenderism, and sexual-orientation discrimination. As Grossman explains, an amendment to Title VII that would directly protect gay and transgender people from discrimination has repeatedly been introduced in Congress, but has never passed. However, gay and transgender people have been able to find some protection against discrimination under Title VII itself, via the courts, including the Supreme Court, that have interpreted Title VII to prohibit gender stereotyping and sexual harassment.

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court decisions that, he argues, may together show that almost the entire Supreme Court is hostile to civil rights claims. The first decision, handed down last week, is Filarsky v. Delia. There, the Court unanimously held that a part-time government employee who is alleged to have committed a federal civil rights violation enjoys qualified immunity. In the second decision, Minneci v. Pollard, which drew only one dissent and was handed down earlier this year, the Court also ruled in favor of a civil rights defendant. Focusing on the juxtaposition of the two rulings, Dorf argues, reveals a Court that selectively invokes principles of judicial restraint in a way that disserves civil rights.

Today, on Equal Pay Day, Justia columnist and Hofstra law professor Joanna Grossman comments on gender-based pay discrimination and the available remedies for it. Grossman covers the current status of the gender-based wage gap; the reasons why the gap persists and has proved difficult to remedy; and the efforts that have been made to bolster pay equality. Grossman first focuses on the clear evidence that pure discrimination plays a significant role in the wage gap. Then, Grossman discusses the roles that the Equal Pay Act and Title VII play, with respect to gender-based pay discrimination, and the unfortunate limitations of both laws. She also covers the more recent Lily Ledbetter Fair Pay Act, which President Obama signed into law during his first week in office. Finally, Grossman concludes by describing the key legal steps, procedural and substantive, that she argues should be taken in order to close the pay gap.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

Justia columnist and Cardozo law professor Marci Hamilton takes very strong issue with Republicans’ current stances on issues that are of importance to women, such as contraception access, equal pay for equal work, violence against women, and child sex abuse. As a politically moderate woman herself, Hamilton notes that she would find it very difficult to support the package of views and proposals that the Party is offering voters this year. Interestingly, Hamilton observes that, had Rick Santorum never run for president, the other candidates and the voters might never have focused on these issues, and the issue of the economy might, instead, have dominated Republican speeches and stances in the run-up to the election. But because Santorum did run, Hamilton predicts that Mitt Romney, too, will face a very significant gender gap at the polls this year as he, too, is forced to address these issues—for female voters will likely be uncomfortable with some of his answers.

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.

Guest columnist and Justia editor David Kemp comments on a recent decision by the U.S. Court of Appeals for the Eleventh Circuit, which held that the Fourteenth Amendment of the federal Constitution protects transgender government employees from discrimination on the basis of their transgender identity, as part of its protection from discrimination based on gender. Kemp notes that the Fourteenth Amendment was implicated because the plaintiff’s employer—which fired her when she explained to her boss that she planned to transition from male to female—was a government agency. As Kemp explains, the resulting decision was a precedent both for the illegality of a firing based on gender non-conformity, and for the proposition that a firing like the plaintiff's violates the federal Constitution’s Equal Protection Clause. Kemp also discusses the Supreme Court precedent of Price Waterhouse, which established that an employer cannot legally force an employee to conform to stereotypes associated with his or her gender, and the question of what level of scrutiny courts will apply to discrimination claims arising out of transgender status.

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

Justia columnist and attorney Julie Hilden comments on a recent Louisiana federal district court decision striking down an extremely broad and vague law prohibiting registered sex offenders from accessing a large variety of websites. Hilden argues that the judge’s decision, which followed a bench trial, was plainly correct under First Amendment case law. Accordingly, she contends that Louisiana Governor Bobby Jindal is likely using the law, which he signed, and the decision, which he has vowed to appeal, for political purposes. Hilden also raises the questions whether any law restricting Internet access for ex-offenders could pass muster; if so, what it might look like; and whether individual websites’ policing themselves—or creating separate sections for adults and children—might be part of the solution.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses two recent steps toward limiting the scope of the detention provisions of the National Defense Authorization Act (NDAA), the controversial, recently-passed federal statute regarding the military detention and trial of terrorist suspects. The first step was an Obama Administration policy directive that effectively negates an NDAA section that purports to require that non-citizens suspected of strong links to terrorism be held in military, not civilian, custody. The second step was the commencement of a Senate Judiciary Committee hearing on the Due Process Guarantee Act, which was introduced after the NDAA was enacted into law. As Mariner explains, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the U.S. against being detained indefinitely under a military rationale. Moreover, the Act would set a baseline prohibition on indefinite military detention in such cases, allowing such detention to be used only when Congress explicitly provides for it. Mariner sees these steps as constituting progress, but contends that amending the NDAA itself would have been a better remedy—especially as a presidential directive can always be reversed by a future president.

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.