Key Words 20-28 Flashcards
hate speech and symbols in WA
WA history and case law
hate groups in WA today
drafting exercise
New York Times v. Sullivan (1964)
extends First Amendment protection to criticism of an unnamed public official
Basic Idea: Public Debate over Public Speech is important; Can you ban hate speech?
Doe v. University of Michigan
campus speech codes
* False Compromise Take- Central Debate
o Minorities are offered the most protection from the First Amendment and should therefore be hesitant of 1st am restrictions
* 1st Am at the center of the argument that the Campus Codes do not fit within the broad 1st Am.
campus antiracism rules (Richard Delgado)
framing problem as a First Amendment problem or an equality problem
rules that limit speech (1st Amendment) v. protecting equality of minority personhood (13th and 14th Amendments)
campus antiracism rules (Richard Delgado) In Class Argument
o Equality in the 1st Am should be the starting point instead; burden shifts to the hate speaker
o Judge framing is key to determining the outcome
* Here:
o 1st Am. Is primary to the 14th Am. BUT
o Delgado: Should be the other way around
Confrontation Theory
o More reminders in the setting that there is an occasion that requires morality, then the folks will be more likely to not act racist (in the National Moral Character)
o Derrick Bell: Society is organized where Black and poor white folks are beefing to prevent the formation of radical racial solidarity
Presidential hate speech
Solutions: Voting & Lawsuits based on socially disruptive hate speech
Keep an eye out for a law review article
hate speech on the internet
reasons for difficulty to deter or control it
Law of Racial Thermodynamics
regulation of hate and racism
social contact theory
confrontation theory
Hoffman Plastic Compounds, Inc. v. NLRB (2002)
National Labor Relations Board and Act of 1935 (NLRB)
would have awarded backpay to an undocumented immigrant but foreclosed by IRCA (see IRCA following)
* Cannot grant backpay to an undocumented individual working without permit due to conflicting with Immigration law (0 right to be here and therefore no right to compensation)
* Company insist that they fired the CL for union busting not for documentation status
Immigration Reform and Control Act of 1986 (IRCA)
prohibits hiring of undocumented persons
establishes an employment verification system
Espinoza v. Farah Mfg. Co. (1973)
national origin discrimination
Title VII of Civil Rights Act failed to protect non-citizen employees (aliens/foreign born) from employment discrimination
Espinoza v. Farah Mfg. Co. (1973) In Class Notes
- P.721: laundry list of why Courts reject Latino employment discrimination
o Documentation status (not legally here then not legally working)
o Joking/take a joke
o Cannot prove that you were fired because of racial identity
o Spanish mono-lingualism - WHY is this not considered employment discrimination?
o Because the company’s policy against hiring noncitizens did not single her out based on national origin but only based on her lack of full citizenship
o Company hired Mexican Americans and Court was convinced by the Fed gov usage of only American Citizens
Title VII of Civil Rights Act of 1964-disparate impact and disparate treatment
- Factory worker and Farmhand solidarity movement
- 1986 Immigration Policy update made Espinoza void by adjusting the rules on undocumented labor
o Undocumented workforce cannot be paid a substandard wage - Proxies for Latino race have been unsuccessfully litigated
U.S. Equal Employment Opportunity Commission
hostile workplace environment
Machado v. Goodman Manuf. Co.
extremely hostile workplace in one office (Texas), but favorable treatment in Miami
An employer will be subject to liability for maintaining a hostile work environment if an employee suffers discriminatory comments and behavior based on the employee’s national origin.-Quimbee
Garcia v. Spun Steak-English-Only workplace rules
- Prohibition of the Spanish language during work hours that was upheld by the 9th Cir.
- Title VII complaint; allows disparate impact of Outlaw of Spanish language claims when “credible”
- EEOC rejected the company’s claims; District Affirmed; Reversed by 9th Cir.
- Three Reasons
o Title VII does not violate Cultural expression
o No outright outlaw of inter-employee communication
No impact of the rule other than when the rule is violated
They brough it on themselves
o “English-Only policy did not create an environment hostile enough or creating inferiority”
accent discrimination- Fragante v. City and County of Honolulu (1990)
- If you do not hire someone because they have an accent then that is permitted unless you make it obvious that there is racial motivation beyond white incompetency
- Upheld a decision to refuse employment to a top-tier candidate due to their Filipino accent
BFOQ
bona fide occupational qualification
Title VII provides an exception to its prohibition of discrimination based on sex, religion, or national origin. That exception, called the bona fide occupational qualification (BFOQ), recognizes that in some extremely rare instances a person’s sex, religion, or national origin may be reasonably necessary to carrying out a particular job function in the normal operation of an employer’s[2] business or enterprise.-Wikipedia
how to learn a foreign language via immersion
Go there; learn it
Rivera v. College of Du Page (2006)- hostile workplace discrimination
In Rivera v. College of DuPage, the Court granted summary judgment to an employer after finding that increased comments and warnings about a plaintiff’s job performance, obscene gestures and epithets, and ridicule for the amount of food the plaintiff ate “may have been stressful or hurtful to [plaintiff], . . . [but] would not have dissuaded a reasonable employee from making a complaint.” 445 F. Supp. 2d 924, 927 (N.D. Ill. 2006).
Cardona v. American Express Travel Related Services (1989)
intra-minority discrimination
Holding a person of Columbian ancestry had a § 1981 claim where he was discriminated against in favor of employees of Cuban ancestry
Kevin Johnson, Drivers Licenses and Undocumented Immigrants
talked about drivers’ licenses
did not talk about national identity card (Real ID)
Christopher Camerom (The Rakes of Wrath)
gas-powered leaf blowers in LA
talk to the people on the ground
Ernesto Hernandez-Lopez, LA’s Taco Truck War
when the city of Los Angeles and LA county used parking regulations to restrict “loncheros,” i.e. “taco trucks.” It describes the legal doctrine used by courts to invalidate these local restrictions. The California Vehicle code makes local food truck regulations illegal. Decades of court decisions affirm this. The paper sheds light, legal and cultural, on food truck debates, which will surely expand nationwide.
United Farm Workers movement
Filipinos in the Agricultural Workers Organizing Committee (AWOC)
National Farm Workers Association (NFWA)
Cesar Chavez (and Dolores Huerta)
Teamsters Union
grape and lettuce boycotts
national figures and celebrities weighed in
Emma Tenayuca (Texas organizer)
pecan shellers’ strikes
Cedar Point Nursery v. Hassid (2021)
union organizers right of access to agricultural employers’ property
does this qualify as a taking?
In its decision, the Court held that a regulation made pursuant to the California Agricultural Labor Relations Act that required agricultural employers to allow labor organizers to regularly access their property for the purposes of union recruitment constituted a per se taking under the Fifth Amendment. Consequently, the regulation may not be enforced unless “just compensation” is provided to the employers.-wikipedia
free trade v. protectionism debate
economists and business interests on the free trade side
organized labor and environmentalists on the protectionist side
* Why is Mexico poor and why is there such a labor migration
* Because of
o Conquest
o Coups
o Neoliberalism
Corruption
One party government
Cronnyism
Under-utilization of Women’s labor
o NAFTA
NAFTA (North American Free Trade Agreement 1992) (U.S., Canada, Mexico)
allowed for free trade
did not address immigration/labor issues
* Free movement of goods but not of people
* Principle of Free Trade
o Mutual increase in economic growth through mutual exchange
o As few of tariffs as possible
o US sells the computers and Mexico sells the produce and everything is copasetic.
a missed opportunity (Kevin Johnson)
NAFTA avoided addressing the flow of labor, documented or not
NAFTA replaced by United States-Canada-Mexico Agreement Implementation Act (2020) unable to judge the effect on Mexican experiences
* Suggest that there was a cultural position in America against immigration that facilitates nativist expressions
* Is there a justification to cultural exclusion of immigrants
dominant-subordinate paradigm (Jose Luis Morin)
promotes economic policies that keep the U.S. in the dominant position and Latin America subordinate
left those countries vulnerable to “colonialism, plunder, intervention, exploitation”
* Cheap reserve army of labor & Maintains Latin American governmental dependency on the North
* Labor Theory of Surplus Value applied to the international arena of the Monroe Doctrine
Adelaida Del Castillo, Beatriz Pesquera, Denise Segura
Latina Feminism
patriarchy and exclusion from the women’s movement
* Two features of difference
o Intersectionality: two disadvantaged categories (women)(Latino Race) create new experience
o Machismo: Latino masculinity that targets Latina vulnerability
* Reserved usage of Latinx terminology
o References the whole group and typically used by outsiders
o Obfuscates the Latina experience via homogenization
Elvia Arriola, Gendered Inequality
heterosexism
requires new models of workplace discrimination and harassment
Francisco Valdes, Queers, Sissies, Dykes, and Tomboys
- Complementarianism for the gays/lesbian relationship
- Discrimination of effeminacy in the Latino gay community
Richard Delgado, Rodrigo’s Sixth Chronicle
intersectionality and essentialism (Richard Delgado)
role of, in social change
* Relevance: Discontented small minority groups who refuse to shut up are the cultural edge of thought
o The straight white women and men of color are in the listening position
Angela Harris, Race and Essentialism in Feminist Legal Theory
essentialism and feminist thought
focus on white women’s problems too narrow
role of race minimized and not recognized
Angela Harris
- Issue with Black Rights Advocates silencing Black women in the Civil Rights Movement
o False assumption of solidarity across gender divisions
o What is an essential Black woman? Not super real - Transfer of concept to the Latina experience of marginalization
- Utilization of rape statutes as a means to assess the specific marginalization of Black women
Rogers v. American Airlines, 1981
at issue: corn row braids in the workplace
hair style as a proxy for race
equality jurisprudence—expands and contracts over time
Equality Jurisprudence
- Beginning of Equality Jurisprudence
o Mostly originated in Korematsu
o Extended and solidified (conceptually) in Brown - The idea of equality is always in flux based on socio-economic forces
- Unsympathetic if
o The trait is not immutable
o The trait is controllable by the person being discriminated against
It is not a legally recognized form of discrimination to perform Whiteness
Extra, uncompensated work within the “Working Identity” model of performing Whiteness
o Bone Fide Qualified Reason for the Discrimination: Business-like Presentation
Again the performance of whiteness is challengeable as well
Maria Ontiveros, Three Perspectives on Workplace Harassment of Women of Color
workplace harassment as an assertion of power
* Opportunity to utilize ICE or cultural shame towards Latinas is utilized by harassers
* Victims are subject to scrutiny and further harassment by judicial officials
o Racial stereotypes of POC promiscuity
Margaret Montoya, Mascaras, Trenzas Y Grenas
masks and mascaras
personal accounts as a method of expanding discursive space
* “Grenuda”: concept of Latina respectability politics
* Captures the concepts of assimilationism and conformity through the discussion of masking
* Eventually the mask becomes the personhood thus the process of assimilation is concluded
* It is dangerous whenever there is an event where someone else peels back the curtain on your personhood
Madrigal v. Quilligan, 1981
informed consent to sterilization
unspoken front for eugenics agenda
* Strong cultural significance of child bearing amongst the Latina community
o Used against the plaintiffs because of a “how were the doctors supposed to know what other cultural practices are??” therefore it is acceptable to sterilize people
o Effective utilization of the jerk-fuck affirmative defense of “someone must have gotten consent because otherwise I would not have done it”
miscegenation (Perez v. Lippold, 1948)
voided ban on interracial marriages in California
* Right to marry across racial lines
* Pre-Loving v. Virginia (declaring it unconstitutional)
* Light skinned Latinos could marry Black and dark skin couldn’t marry white
* First case to set out a classification scheme of races in the US
* Response to the equal impact of miscegenation argument
o Equal protection clause issue arises from the specific discrimination against interracially inclinated couples in favor of racially similar marriages
o Groups that are similarly situated that creates localized issues
Yvonne Cherena Pacheco, Latino Surnames
Latino surnames
retention of mother’s name preserves acknowledgement of her identity
* The Anglicization of the Latino surnames is a means to exert control by the dominate group over Latinos by
o Reducing names to convenient forms of Anglican interaction
* Structure for Latino Naming
o Given Name
o Second given name
o Paternal last name
o Maternal last name
* The dual application racial studies are important to this concept
Judge Jenny Rivera, Domestic Violence Against Latinas by Latino Males
social supports for victims
* Distinguished by the lack of bilingual and culturally educated counselors at shelters
* No all inclusive feminist strategy will fully address the issue but bilingual counselors is a bare minimum
* The threat of deportation is a specific harm that can be leveraged against surviviors
o Combined with distrust of the police and lack of access the legal system
o The shame incurred by Latinas is a powerful disincentive
o The endless suffering of women through the Virgin’s suffering
o The potential for the leveraging of a cultural defense
* The typical feminist framework has privileged a universalized womanhood over the specific lived experiences of Latinas
* Will immigration grant asylum for DV survivors? YES see below
Aguirre-Cervantes v. INS, 2002
asylum requirements
violent domestic abuse and role of machismo
well-founded fear of abuser
membership in “social group”
* Survivor of horrendous, violent abuse by her father
o Denied access to medical care by abuser
o Evidenced through scarring
* Lack of familial support because of the pervasiveness of the abuse by her father
* Family as a particular social group facing discrimination that can be the basis for asylum
o How is a family the same as a social group
o Permanent
o Cohesive
o Part of the personal identity
Crying Out Loud, Houston Chronicle
young Latina suicide rate
role stress
need for personal autonomy v. regard for family unity
* Familial status stress (familism)
o Early arrivals are expected to pursue and maintain maternal labor
* Under-employment creates psychological harms, obesity, the poor diseases
Laura Padilla. Latinas and Religion
role of religion
liberating or oppressing
source of strength or subordination
* Continuous church influence in government and social service in Mexico
o Eventually became in conversation with Liberation Theology
o Some dioses are more progressive but the central sexism remains unaddressed
Berta Hernandez, Sex, Culture, and Rights
redefining violence against women
abandoning old norms such as marianismo and familismo
seeking international solutions
* Veneration of the Virgin Maria and fatalism within the Latina Community functions as a coolant against later success
o Lack of graduate school aspirations
o Taking on abuse with “grace” or indifference
o High rates of sucidiality and depression
* Econ marginalization of women should be considered a violence against women
o Includes lack of education in this framework of violence
Guadalupe Luna, “This Land Belongs to Me”
women under Spanish law and Mexican law
land acquisition and claims of ownership
marriage alliances and property rights
* Wealth and Learning or a living from landownership
o Women in the American annexed territories found themselves treated as the property of male family under American Common Law
o There was a recognition of nonpatriarchial woman property rights in MX
Elvia Arriola, Voices from the Barbed Wire Fences of Despair
maquiladoras
benefits to employers
disadvantages and harms to workers
917 Whats wrong with the labor exploitation of women if they are making more money than they otherwise would
o Why not: high noise, danger, dust, chemicals, long hours and low pay
o Why so: US trashed the MX economy
* How to spot a maquiladora:
* Primarily a woman’s job
o Mostly because of the textile work
o More manageable
o Less external job security
* How do the foreman string along the work force: intraworkplace competition and hyper surveillance; armchair social science
o Team quotas- “women are communal”
* Health risks of factory work
o Prolonged standing
o Ruins the kidneys and the eyes
o When your manager thinks youll work forever they will work you forever
rebellious lawyering
identifies radically with the most disempowered
Gerald Lopez, The Idea of a Constitution in the Chicano Tradition
rejection of national symbols, holidays, and constitutions
the Constitution should be a living document subject to interpretation
some constitutional interpretations have inflicted injuries on disempowered citizens
Michael Olivas, “Breaking the Law on Principle”
gritty work “from below” and throwing one’s body across the barbed wire so others can follow safely (dirty dozen list)
Martha Minow’s three risks of breaking the law on principle
presents dilemma of unaccompanied refugee children not covered by immigration law
tells story of Oscar Zeta Acosta—a unique Chicano lawyer and activist
Castro v. Superior Court of Los Angeles County (L.A. Thirteen case)
Richard Delgado, Rodrigo’s Ninth Chronicle
legal instrumentalism
allows for different strategies of law reform depending on the times and circumstances
suggests pragmatic approach to reform when rule of law fails
* Treat the law broadly in the same manner as the Traffic Department
* Legal pragmatic approach
Rodolfo Acuna, Occupied America
“Zoot Suit” riots and Sleepy Lagoon case against Chicanos (1942)
prejudice and stereotypes from servicemen and reporters
barrios, pachucos, zoot suits
Carey McWilliams, journalist and lawyer, chaired Sleepy Lagoon Defense Committee
California Committee on Un-American Activities
Chicanos gained support from Eleanor Roosevelt
2d District Court reversed, judge conducted biased trial (1944)
FBI continued to investigate LULAC for many years afterward
Oscar Zeta Acosta, Autobiographical Essay on Chicano history, identity, and movement
Chicanismo, La Raza, nationalism
LA school walkouts
* My man that said fuck legal aid imma take some acid- early 1960s
* Then became a radical lawyer
Sameer Ashar, Movement Lawyers and the Fight for Immigrant Rights
advocates a more active role for lawyers to act more collaboratively with activists
Thomas Saenz, One Advocate’s Road Map
discrimination cases rarely won by traditional causes of action, need new imaginative strategies
* Challenging Prop 127? Latino Discrimination challenged via federal preemption
* 1st am. To challenge door to door solicitation for garden labor
* Contract Clause challenge for revoking undocumented scholarships
* Focused on challenging proximity discrimination by broadening the toolbox for lawyers to challenge discrimination that does not fall explicitly in the traditional equality claims
Paul Butler, Racially Based Jury Nullification
urges jurors to consider race and nullify convictions of nonviolent black offenders
snitching
- Conference availability with travel expenses
Gerald Lopez, The Work We Know So Little About
lawyering, living, and working in the community
Muneer Ahmad, Interpreting Communities, Lawyering Across Language Difference
client centeredness
language differences in poverty lawyering
challenges of interpretation
* The translator disrupts the lawyer-client relationship
o Communication and trust can be destroyed by the ineffective translator
o Lawyer should encourage the translator to be in partnership, instead of utilized by, the lawyer
o Translator can be an assistant in understanding the myriad issues at stake
o If the translator is instructed to literally translate then everyone misses the real context of the rarely heard subaltern speech
terra nullius, in Australia and Canada
restoring native title and transferring large tracts of land back to indigenous people
Lobato v. Taylor (Colorado 2002)
legal status of Mexican lands held in common
Sangre de Cristo Mexican land grant (1844)
Beaubien document
granted enjoyment of benefits of pasture, water, firewood, timber to local villagers (1863)
Jack Taylor purchased and fenced part of SC grant (1960) but denied rights of access to successors in title of original owners (Mexican landowners)
court restores limited rights (easement) to descendants of original villagers
role of law students in researching Mexican legal rights
Lopez Reyes Tijerina (Rodolfo Acuna, Occupied America)
modern day land revolt movement
Kit Carson National Forest
https://www.elpalacio.org/2020/08/land-back/
General Accountability Office, Report to Congressional Requesters (2004)
some land claims in the Southwest may be valid
provided Congress with several options
rebellious lawyering 2
several options (Olivas, Lopez, Ahmad, Acosta, etc.)
pluses and minuses: dangers and joys
