Archive for the ‘Race’ Category
Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?
posted by Taunya Banks
I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.
Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”
The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read the rest of this post »
posted by Kaimipono D. Wenger
I attended a fantastic colloquium talk yesterday at which Cynthia Lee (GW) presented on her forthcoming article about the Trayvon Martin case. (The TJSL colloquium committee, including my colleagues Alex Kreit and Meera Deo, have done a fantastic job of bringing speakers to campus.) Professor Lee drew on her own prior work as well as groundbreaking new research, and used the Martin case as a lens:
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving claims of self-defense. Recent research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor, known but not highlighted. Sommers and Ellsworth demonstrate through empirical research that making race salient, or calling attention to the relevance of race in a given situation, encourages individuals to suppress what would otherwise be automatic stereotypic congruent responses in favor of acting in a more egalitarian manner. Building on these insights, Professor Lee suggests that in the run of the mill case, when an individual claims he shot a young Black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual’s claim that he felt he was being threatened by the young Black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department’s failure to arrest Zimmerman and extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received by the Trayvon Martin case. In most interracial criminal cases, race is a background factor but generally is not something either party tries to highlight. Professor Lee concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.
Professor Lee’s previous scholarship has explored in some detail the ways in which racial biases can infect verdicts, especially in areas like self-defense where subjective intent can be important. Her article Race and Self-Defense is foundational, and I assign it every year in my Critical Race Theory class (along with other important work in this area, like Paul Butler‘s writings on jury nullification and on mass incarceration). It was a delight to hear Professor Lee present about her new work, and I’ll absolutely be using this as I teach in the fall. And Professor’s Lee’s talk illustrated one silver lining to the Trayvon Martin case: The intense media scrutiny focused public attention on possible racial biases, and this created a public awareness which may ultimately lead to a more just criminal justice system.
posted by Taunya Banks
In 1995 Gunther von Hagens presented his Body Worlds exhibit, described as a collection of real human bodies that have been “plastinated” to prevent their decay and make them more malleable. Some of these plastinated bodies were cut open to reveal their inner organs and then positioned in lifelike poses. The exhibit toured the world and was wildly popular.
Body Worlds also generated some criticism. Canadian social scientist, Lawrence Burns, argued that “some aspects of the exhibit violated human dignity.” (7(4): 12-23 Amer. J. Bioethics 2007) Although touted as an educational experience Burns and others worried that the bodies were being used as “resources to make money from the voyeurism of the general public.” A key concern was that the bodies were denied burial and that this was a dignitary affront. Burns conceded, however, that the concept of human dignity as applied to deceased individuals is unclear.
I started to think about whether there is dignity after death and, if so, what are its parameters, when I read a news article from the New Haven Register, about the skeleton of an enslaved man that was being studied by the anthropology faculty and students at Quinnipiac University prior to burial.
The enslaved man who died in the 1798 (slavery was not abolished in Connecticut until 1848), was named Fortune. At the time of his death Fortune was the human chattel of a Waterbury Connecticut physician who upon Fortune’s death boiled his body to remove the flesh keeping his skeleton to study human anatomy. Fortune’s body remained unburied and was on display as late as 1970 at the Mattatuck Museum where until recently it was still housed. Read the rest of this post »
posted by Aaron Saiger
I am working on a paper about student speech rights in public school that has me vacillating about whether the classic Supreme Court case of Tinker v. Des Moines Independent Community School District (1969) is a brilliant exercise in linedrawing or an utter failure. Many readers will remember that Tinker held that students could wear black armbands to school in silent protest of American involvement in hostilities in Vietnam; school officials may interfere with or punish speech only if they reasonably forecast that it will “materially or substantially interfer[e] with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.” The Tinker rule has the nice feature of explaining why a student cannot answer a teacher’s question “What were the results of Irish potato famine?” with “US Out of Vietnam!” while she can say the same thing in the hallway. More broadly, Tinker establishes a certain kind of pedagogical regime for the hours that students spend in-school-but-not-in-class, one where students can learn how to exercise constitutional rights by practicing them, up to the point of disruption.
Tinker’s flaws were made vivid once again this week by yet another case, this one from the Fourth Circuit, involving students being prohibited from and punished for wearing to school clothing that bears the likeness of Confederate flags. Such behavior seems initially very similar to wearing a black armband to protest Vietnam; but the courts of appeals have fairly consistently held that such speech can be barred under Tinker because histories of racial tension make it reasonable for school authorities to expect disruption to result from such displays. The new case, Hardwick v. Heyward, is quite emphatic on this score, emphasizing that the mere fact that the shirts did not lead to disruption is immaterial, because it was reasonable for school officials to predict disruption; moreover past racial disputes in the school were material, because they made the prediction more reasonable. The Hardwick rationale pretty clearly means that, had there once been fistfights in the Des Moines schools about the Vietnam War, or perhaps even World War II, then the armbands could have been banned in the present. Thus Tinker is deployed to create a particularly strong kind of hecklers’ veto.
My gut reaction to this case is — who is fooling whom? Read the rest of this post »
posted by UCLA Law Review
Volume 60, Issue 3 (February 2013)
|Urban Bias, Rural Sexual Minorities, and the Courts||Luke A. Boso||562|
|Private Equity and Executive Compensation||Robert J. Jackson, Jr.||638|
|The New Investor||Tom C.W. Lin||678|
|The Fate of the Collateral Source Rule After Healthcare Reform||Ann S. Levin||736|
|A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons From the Lawrence King Case||David Alan Perkiss||778|
posted by Kaimipono D. Wenger
In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.
The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,
“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”
The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?
Well, maybe. Read the rest of this post »
February 18, 2013 at 7:11 pm Tags: blind review, gender, law reviews, Race, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 5 Comments
posted by Kaimipono D. Wenger
Among the many institutions tainted by historical association with slavery are a number of universities, including Emory. This is clear from the historical record; both the University itself and many of its employees used slave labor, while the school also served as a focal point for important intellectual defenses of slavery.
In recent years, the University has taken steps to recognize and take responsibility for this history and move forward in positive ways. The school issued an official statement of regret for its involvement in slavery; launched the Transforming Community Project; and held a fantastic conference on Slavery and the University which focused on groundbreaking work from Mark Auslander, Al Brophy, and other scholars. (Full disclosure: I was a speaker at this event.)
All in all, Emory has been moving in a very positive direction over the past few years. Which makes the latest column from University President James Wagner such a head-scratcher. Read the rest of this post »
posted by Kaimipono D. Wenger
As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.
But is it really the case that law review affirmative action would be a bad thing? Read the rest of this post »
February 16, 2013 at 2:07 pm Tags: gender, law reviews, Race, scholastica, unconscious bias Posted in: Feminism and Gender, Law School (Law Reviews), Law School (Scholarship), Race Print This Post 43 Comments
posted by Caroline Mala Corbin
In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.
Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?
October 15, 2012 at 4:00 pm Tags: Bob Jones, discrimination, free exercise, Race, sex, taxes Posted in: Civil Rights, Constitutional Law, Education, Feminism and Gender, First Amendment, Law and Inequality, Race, Religion Print This Post 10 Comments
Professor Sherrilyn Ifill on Fisher v. University of Texas: Still Litigation Without Minority Representation
posted by Danielle Citron
My colleague Sherrilyn Ifill has generously offered to share her insights on the Fisher case. Professor Ifill is a nationally recognized expert on civil rights litigation: we are lucky to have her aboard as a guest commentator. Here is Professor Ifill’s post:
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies. Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.
This troubling phenomenon was first the result of the federal court’s interpretation of intervention of a right under Rule 24 of the Federal Rules of Civil Procedure. A year after the Bakke case, Professor Emma Coleman Jordan (nee Jones) wrote powerfully about the refusal of the federal trial court in that case to allow black students to intervene in her Harvard Civil Rights-Civil Liberties Law Review article Litigation Without Representation: The Need for Intervention to Affirm Affirmative Action.
Post-Grutter, the exclusion of minority students as parties at trial may be even more firmly fixed. By grounding affirmative action’s constitutionality in the First Amendment rights of universities, the Court saved affirmative action in higher education, but may also have further reinforced the redundancy of minority student participation as full litigants in these cases.
The result is that the Fisher v. University of Texas case was litigated at trial almost entirely between white applicants and a majority white public university. No lawyer arguing the case in the Supreme Court represents the interests of minority students. Certainly it’s true that civil right litigators at the NAACP Legal Defense & Educational Fund were permitted to file briefs and to present oral argument in the Court of Appeals in the Fisher case. But the real issue is the refusal of courts to allow minority students party status at trial.
The exception was the University of Michigan case, Grutter v. Bollinger, where black, Latino, Asian-American and Arab-American students were permitted to intervene at the trial phase of the case. Their robust defense of the school’s affirmative action policy included strong and direct testimony and evidence about the school’s history of discrimination against blacks. Strikingly, in contrast to the law school’s defense, the minority students challenged the University’s over-reliance on the LSAT in its admissions decisions, to the detriment of minority students, describing the LSAT as providing a “sharp, undeserved, disadvantage for minority LSAT-takers, and a sharp unearned advantage for white LSAT-takers.”
The participation of minority students as parties at trial is important because we can only expect universities like Michigan and Texas to defend their affirmative action initiatives in the furtherance of their own interests and goals. Thus, the University of Michigan was unlikely, in the Grutter case, to explore its strong reliance on applicant LSAT scores in admissions. Nor does the brief filed by Texas lay out in detail the history of discrimination at the University of Texas, and the ongoing alienation experienced by black students at the state’s flagship university, as set out in a recent article co-authored by Professor Lani Guinier.
Although some of the most compelling arguments advanced in this case are contained within the amicus briefs filed in the Fisher case, including one filed by the NAACP Legal Defense & Educational Fund, Inc. on behalf of black students, another by the Advancement Project highlighting the history of discrimination by the University of Texas, and still another filed by the family of the man who challenged and defeated segregation at UT 60 years ago, amicus status is no substitute for party status at the trial phase. All good litigators know that the ability to shape and develop a cause of action at trial, first by the allegations advanced in the complaint, then by the information sought on discovery and finally by the theory of the case advanced at trial – determines the substantive scope of the findings ultimately made in the case. Thus, party standing in these cases is particularly important.
In fact, the trial judge in Fisher permitted the League of United Latin American Citizens (LULAC) and the NAACP to submit amicus briefs at trial “in lieu of intervention,” and expressly denied permission to LULAC to submit any evidence in the case.
It’s certainly true that despite the party status of minority students in Grutter, the Supreme Court in its majority opinion appeared to ignore the students’ contribution to the case, not even mentioning the intervenors’ participation in the recitation of the procedural history of the case. Some suggest that this demonstrates that even when intervention is permitted, courts may ignore the presentation made by minority students. But the mere fact that an appellate court fails to acknowledge the contribution of intervenors, is not evidence that those intervenors did not play an important role in shaping the record to which the appellate court was bound for its review.
There’s something deeply disquieting about higher education affirmative action cases in which blacks and Latinos are virtually litigation bystanders. More than thirty years after the Bakke case, affirmative action in higher education has survived and may yet survive this latest challenge in Fisher, but the voice of racial minorities in shaping the presentation of these issues is at a low ebb.
posted by Yale Law Journal
The Yale Law Journal Online has recently published two essays, one discussing the legacy of the Supreme Court’s decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and the other providing insight into the Court’s upcoming argument in Fisher v. University of Texas at Austin, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345), granting cert. to 631 F.3d 213 (5th Cir. 2011).
In West Coast Hotel’s Place in American Constitutional History, G. Edward White shows that the conventional narrative about West Coast Hotel, which many view as representing “the Supreme Court’s abandonment of a constitutional jurisprudence featuring aggressive scrutiny of legislation that regulated economic activity or redistributed economic benefits,” is misleading. Instead, West Coast Hotel’s significance comes from its place in a “different narrative, one featuring clashing views on the issue of constitutional adaptivity: how the general provisions of the Constitution are adapted to new controversies and whether the meaning of those provisions change in the process.”
Turning to the present, Adam D. Chandler writes in How (Not) To Bring an Affirmative-Action Challenge about the “grave defects” in Fisher, a much-hyped affirmative action case concerning the use of race as a factor in undergraduate admissions at the University of Texas at Austin. Chandler’s argument “boils down to this: The only relief still available to Fisher is a refund of her application fees (Part I). Texas could therefore moot the case for a tiny sum (Part II). Regardless, the Eleventh Amendment and Title VI jurisprudence bar recovery of the fees (Part III). In addition, there are three defects in Fisher’s standing to claim the fees (Part IV). The potential recourses for resuscitating the case are fraught and unconvincing (Part V). And if, despite all that, the Court reaches the merits, the Justices will find the case a much narrower dispute than they might have expected (Part VI).” Chandler’s essay presents a number of ways that the Court could “exercise its passive virtues” and retreat from deciding a case that threatens its institutional legitimacy and legacy.
G. Edward White, West Coast Hotel’s Place in American Constitutional History, 122 YALE L.J. ONLINE 69 (2012), http://yalelawjournal.org/2012/09/24/white.html.
Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge, 122 YALE L.J. ONLINE 85 (2012), http://yalelawjournal.org/2012/10/01/chandler.html.
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post One Comment
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post No Comments
posted by UCLA Law Review
Volume 59, Issue 6 (August 2012)
|From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control||Kimberlé W. Crenshaw||1418|
|Prison, Foster Care, and the Systemic Punishment of Black Mothers||Dorothy E. Roberts||1474|
|Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System||Jyoti Nanda||1502|
|The New Racially Restrictive Covenant: Race, Welfare, and the Policing of Black Women in Subsidized Housing||Priscilla A. Ocen||1540|
|Justice for Girls: Are We Making Progress?||Francine T. Sherman||1584|
|Engendering Rape||Kim Shayo Buchanan||1630|
|Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody||Brenda V. Smith||1690|
|“In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights||George Lipsitz||1746|
|Unlocking the Gates of Desolation Row||Sara Taylor||1810|
posted by Leora Eisenstadt
In a recent case out of the Sixth Circuit, the court addressed the concept of “racial balance,” finding that an effort to achieve racial balance in disciplinary measures constitutes direct evidence of discrimination. While this is by no means the first case to deal with “racial balance” and discrimination, I am wondering: are all “racial balance” cases created equal?
In Ondricko v. MGM Grand, the plaintiff, a white woman, claimed reverse race discrimination (and sex discrimination) after she was fired from her job as a floor supervisor in the casino. Ondricko was ostensibly fired for participating in a “bad shuffle” at a blackjack table that she supervised. This type of incident is apparently not uncommon, and the court had at least six other similar incidents to compare involving white and black men and women who had engaged in similar conduct and whose discipline varied from several-day suspensions to terminations.
The “smoking gun” in this case is the interesting part. Four months before Ondricko’s incident, a black woman was terminated for her involvement in a similar incident involving unshuffled cards put into play. Around the time that supervisors were discussing the appropriate discipline for plaintiff, two managers had a conversation in which one noted that the black woman’s lawyers had called and wanted to know how the casino was going to handle Ondricko’s case (presumably because they viewed her as a similarly situated comparator). The other manager responded by saying, “do you think I wanted to fire [Ondricko], I didn’t want to fire [her], how could I keep the white girl?” The Sixth Circuit determined, based on this statement, that a reasonable jury could conclude that race was a motivating factor in the decision to terminate. “[I]t is certainly reasonable to conclude . . . that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.” In support of this proposition, the court cited another Sixth Circuit case involving a school board’s attempt to be racially balanced in the hiring of school employees. And that was essentially the end of the court’s analysis.
But Ondricko was not an affirmative action case nor was it a case about achieving racial balance in hiring. Instead, the case was about insuring racial balance in the employer’s discipline of its employees. The Sixth Circuit did not see a distinction between these two types of “racial balance” cases, but I think that is a flawed view. This case may not be the best example because the desire to mete out the same discipline across races was expressed in response to a call from a lawyer but what if that had not been the case? Although race is technically a motivating factor when an employer attempts to be “racially balanced” in its approach to disciplining employees, is that the type of case Title VII is intended to cover? Shouldn’t we, on some level, be encouraging employers to be mindful about race when meting out discipline and to insure that they are treating employees of all races the same? If they don’t, they risk disparate treatment claims for treating employees differently based on race. To call race a “motivating factor” in this type of case and not discuss the potentially legitimate reason for consideration of race seems to be a flawed or, at least, an incomplete analysis.
I think there is an analogy here to Ricci v. DeStefano, in which the Supreme Court recently concluded that an employer’s fear of disparate impact litigation is only a legitimate basis for intentional discrimination when the employer possesses a “strong basis in evidence” for believing that a valid disparate impact claim can be asserted. The Court in Ricci may have made my argument about Ondricko and racially balanced discipline more problematic, but I would be interested to hear others’ views on this issue.
posted by UCLA Law Review
Volume 59, Discourse
|The New Ambiguity of “Open Government”||Harlan Yu & David G. Robinson||178|
|Defusing Implicit Bias||Jonathan Feingold & Karen Lorang||210|
|Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?||John D. Castiglione||230|
posted by Leora Eisenstadt
As I mentioned in my prior post, I am thinking a lot right now about the intersection between identity and linguistic meaning as it impacts employment discrimination. In my last post, I wrote about the Seventh Circuit’s view of the word “bitch” and its failure to mention the relevance of the gender identity of the speaker of that word when considering its contextual meaning. I recently posted a draft of my article on this topic, “The N-Word at Work: Contextualizing Language in the Workplace,” on SSRN. The article primarily deals with the “n-word” but makes the broader point that linguistic meaning is a product of numerous contextual factors including the racial, gender, religious, etc. identity of the speaker and listeners.
“The N-Word at Work” argues that there is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general. For example, in American culture, it is a virtually universally accepted reality that a word, like the “n-word,” can have horrific or endearing meanings depending on the identity of the speaker and other contextual factors. There is a striking difference between a white man using the word with his colleagues and a black man using it among his friends. But given Title VII’s prohibition of different treatment on the basis of race, the white man’s use of the term raises difficult questions about whether he can claim protection from discipline under Title VII’s reverse race discrimination jurisprudence.
Nonetheless, both the legal literature and judicial system have largely ignored this problem of language in discrimination cases. Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases. Despite this, the problem persists among appellate and district courts alike.
My article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed. The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit. Finally, the article suggests solutions to this seemingly intractable problem, including the need to (1) recall the purposes of anti-discrimination law and the permissible non-literal applications of that law, and (2) permit and encourage the use of extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Any comments on the topic in general and the solutions I offer would be helpful as I am currently revising the article and am working on my next project, which deals with the changing nature of identity and the “protected class” paradigm in discrimination law.
posted by Danielle Citron
My colleague (and guest blogger) Sherrilyn Ifill has an insightful post on Anne-Marie Slaughter’s attention-grabbing Atlantic piece and future book on the silly notion of “having it all.” As Professor Ifill’s post makes clear, Slaughter’s lament captures a microscopic part of the problem–most working women, especially minorities, cannot remotely have any part of the illusory promise. Professor Ifill calls upon professional women, the 1%, to help the plight of the other 99% of working women with kids, because they can and because they should. Professor Ifill’s post on the relevance of legal scholarship rightly captured lots of attention, and this post should too.
posted by Vanderbilt Law Review
Vanderbilt Law Review En Banc is pleased to present the first round of our current Roundtable, which looks at Fisher v. University of Texas at Austin. Fisher will be argued in the October 2012 Supreme Court Term and the Court will consider whether the University of Texas’s use of race in its undergraduate admissions process is lawful under the Equal Protection Clause of the Fourteenth Amendment.
Professors Vikram Amar, James Blumstein, Tomiko Brown-Nagin, Girardeau Spann, and Gerald Torres consider the issues and offer their views on how the Court might—or should—approach this case in their “First Take” articles. In approximately eight weeks, these same scholars will offer responses to each other’s essays. We look forward to a spirited debate on these interesting and often contentious issues.
Roundtable: First Takes
Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Vikram David Amar · 65 Vand. L. Rev. En Banc 77 (2012)
Grutter and Fisher: A Reassessment and a Preview
James F. Blumstein · 65 Vand. L. Rev. En Banc 57 (2012)
The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Tomiko Brown-Nagin · 65 Vand. L. Rev. En Banc 113 (2012)
Fisher v. Grutter
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 45 (2012)
Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Gerald Torres · 65 Vand. L. Rev. En Banc 97 (2012)
posted by Angela Harris
I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.
These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.
Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.
What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left). Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.
This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.
Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.
In his book A Secular Age, Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.