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Author: Caroline Mala Corbin

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Gender Equity in the Classroom

It is probably not news that women do not participate to the same extent as men in the law school classroom.  Studies show that women speak less often and for shorter amounts of time than their male peers.  For example, a 1994 study of students at the University of Pennsylvania Law School  found that 1L women were significantly more likely to report that they never asked questions (67% women vs. 44% men) or volunteered in class (55% women vs. 33% men).  A 2001 survey of students at Northern Illinois University College of Law found that while 50% of men reported that they ask a question in class at least once a week, only 16% of women did.  While there are studies focusing on race, it was hard to find statistics on women of color.

This imbalance has consequences.  It obviously affects women’s educational experiences.  It can also affect their GPA if the professor opts to “bump” grades based on participation. In addition, in can hinder women’s ability to form mentoring relationships with their professors: A study at Yale found that twice as many men as women listed class participation as the way they found a mentor.

 Next blog will offer (and solicit) suggestions on ways to improve women’s participation in classroom discussions.

For those who are interested in reading more, you might try:

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The Texas Pledge of Allegiance

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

I do not. Am I an unreasonable person? Before you answer, consider some feminist critiques of another reasonable person standard – specifically the reasonable person standard in Title VII sexual harassment cases. Early sexual harassment plaintiffs would have their claims dismissed when courts held that a reasonable person would not find that the work environment was hostile or abusive. For example, a court dismissed a claim even though it conceded that the humor in the workplace was “rough-hewn and vulgar” and that sexual jokes and “girlie magazines” were plentiful.

Feminist commentators identified three problems with these early sexual harassment decisions. First, feminists noted that due to societal inequalities that affected men’s and women’s life experiences, men and women have different perceptions of what constitutes harassment. For example, because women are at much more risk of sexual violence than men, sexual conduct that may seem like harmless fun to reasonable men can seem like a threat of violence to reasonable women. Second, feminists pointed out that the courts tended to equate the reasonable man’s reaction with a reasonable person’s reaction, and that this male norm was invisible to the usually male judges applying it. In other words, judges were unaware that they were presenting a subjective male perspective as an objective universal perspective. Third, the failure to recognize use of the unstated male norm perpetuated male privilege and power asymmetries instead of rectifying them – the actual goal of Title VII of the Civil Rights Act.

Each of these critiques applies equally to the Fifth Circuit’s analysis of “under God” in the pledge. First, just as your sex may inform your evaluation of sexual harassment, your religion may matter when evaluating government endorsement of religion. The phrase “under God” may seem perfectly harmless and totally nonsectarian to Jews, Catholics, Protestants, and Greek Orthodox. Such a reading is less likely if you are a Hindu, or a Buddhist, or an atheist, however, and do not worship or believe in God.

Second, the reasonable person in current Establishment Clause analysis is really a person belonging to the Judeo-Christian tradition. Like the unstated male norm in early sexual harassment evaluations, this unstated norm is presented as the universal, objective norm and is often invisible to those applying it. Thus, the Fifth Circuit can concede that a state reference to God “may not reach every belief system” but nonetheless still characterize it as “tolerable attempt at acknowledging religion without favoring a particular sect or belief.”

The third feminist insight — that the failure to recognize the unstated norm perpetuates power asymmetries and privilege — is also true here. Just as tolerance of sexual harassment made it easier to exclude women from the workplace and reinforced their second-class status, the proliferation of state invocations of God makes it easier to exclude religious outsiders from the political and social community and reinforces their second-class status. Yet one of the major goals of the Establishment Clause is supposed to be to protect religious minorities from precisely this result.

For more, please check out my new article: Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545 (2010).

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The Twentieth Anniversary of Employment Division v. Smith

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.