Archive for the ‘Race’ Category
posted by UCLA Law Review
Volume 61, Issue 1 (August 2013)
|Against Endowment Theory: Experimental Economics and Legal Scholarship||Gregory Klass & Kathryn Zeiler||2|
|Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case||Mark D. Rosen & Christopher W. Schmidt||66|
December 6, 2013 at 6:59 pm Tags: 4th amendment, article iii, broccoli, Constitutional Law, critical race theory, Current Events, endowment effect, endowment theory, Fourth Amendment, health care, portable electronic devices, search, united states v. cotterman Posted in: Civil Rights, Constitutional Law, Economic Analysis of Law, Health Law, Law Rev (UCLA), Legal Theory, Race, Supreme Court Print This Post No Comments
posted by Rachel Godsil
Today’s New York Times lead story, “Millions of Poor Are Left Uncovered by Health Law,” reports on the devastating effect that states’ decisions not to expand Medicaid is having on poor people. This article is accompanied by an image – on the jump page 18 in print and featured online – of two poor families, one in Mississippi and one in Texas. Neither family is white.
The imagery leads the reader to presume that white people are unaffected by the failure to expand Medicaid and also perpetuates the general stereotype that most poor people are Black or Latino. The census figures released in 2013 tell a different story: 18.9 million non-Hispanic whites live in poverty and 8.4 million live in deep poverty. The next largest demographic group living in poverty is Latino – with 13.6 million living in poverty and 5.4 million living in deep poverty. The smallest group of people living in poverty – by over 8 million — are Black people, with 10.9 million living in poverty and 5.1 living in deep poverty. These numbers are staggering and shameful. And it is true that a larger proportion of African Americans and Latinos live in poverty than whites by a significant margin. However, the decision to depict only Black and Latino families in an article about poverty is itself problematic on a number of fronts.
Living in poverty should not be seen as an individual or group failure. Most of us have lived in poverty at some point in our own lives or in our families’ history. And undoubtedly the authors of the article and the editors who chose the picture have sympathy for poor people and hope that their news story and the image will elicit concern and moral outrage. This result is unlikely. Instead, research in social psychology suggests that news stories and images of this sort generally have exactly the opposite effect.
In an article entitled Justifying Inequality: A Social Psychological Analysis of Beliefs about Poverty and the Poor, Heather Bullock at the University of California, Santa Cruz explains that: ”single mothers and ethnic minorities, most notably African Americans, are the public face of poverty. Consequently, poverty is viewed not only as a “minority” problem (Gilens 1999; Quadagno 1994) but a reflection of weak sexual mores and the decline of the nuclear family (Lind 2004; Orloff 2002). Stereotypes about the poor and ethnic minorities mirror each other with intersecting characterizations including laziness, sexual promiscuity, irresponsible parenting, disinterest in education, and disregard for the law.” So the imagery in the NYT article and the discussion of the particular effects on single mothers and “poor blacks” simply confirms negative stereotypes. And the stereotypes are not rooted in fact. The vast majority of African Americans and Latinos in the United States — over 70% — are not poor.
This article and many others in the media contribute to a set of negative stereotypes about people of color and render invisible the enormous numbers of whites who are poor. Sadly, the combined effect, as Bullock explains, appears to be a growing tolerance for economic inequality and a willingness to support decisions that harm the poor (such as the rejection of Medicaid expansion).
The negative stereotypes, as I will discuss in future posts, underlie a set of psychological phenomena such as implicit bias, that underlie discriminatory behavior even among those with egalitarian values and create significant obstacles for progress toward racial equality. As an academic and as a civil rights litigator in my previous life, I have focused on legal and policy change as a means toward racial equality. More recently, I have been part of a consortium, the American Values Institute, linking social scientists with lawyers, legal academics, and the media to recognize the significance of culture. Law, as we all know, is in part a creature of culture. So long as our culture is infused with distorted facts and images about race, law reform is a vastly more difficult task.
Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities
posted by Zvi Triger
Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?
All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.
The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.
August 31, 2013 at 6:13 pm Tags: gender segregation, Jewish law, public tranportation, ultra-orthodox, women's rights Posted in: Civil Rights, Constitutional Law, Culture, Current Events, Feminism and Gender, Race Print This Post No Comments
posted by Karen Czapanskiy
When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.
Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.
I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.
In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.
I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.
August 8, 2013 at 2:02 pm Tags: Caregiving, children, Disability, gender, torts Posted in: Disability Law, Feminism and Gender, Health Law, Law and Inequality, Race, Tort Law Print This Post 6 Comments
posted by UCLA Law Review
Vol. 61, Discourse
The killing of Trayvon Martin in 2012 and recent verdict in the trial of George Zimmerman has generated intense national debate. Mr. Zimmerman’s verdict has not ended the discussion, but instead caused of a firestorm of conversation in the national media.
In light of this debate, we offer a 2012 essay published by two UCLA Law alums discussing the concept of implicit bias and its relationship with gun violence. The essay remains timely event a year after its publication, and can be found here.
posted by Frank Pasquale
A few thoughts in the wake of Zimmerman verdict (and related matters):
1) The New Yorker’s Amy Davidson stated last night, “I still don’t understand what Trayvon Martin was supposed to do” once he knew he was menaced. Gary Younge similarly asked, “What version of events is there for that night in which Martin gets away with his life?”
Cord Jefferson, in a way, provides a practical response to that question:
To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.
Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance. He notes that, “Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong.”
posted by UCLA Law Review
Volume 60, Issue 5 (June 2013)
|First Amendment Constraints on Copyright After Golan v. Holder||Neil Weinstock Netanel||1082|
|Intraracial Diversity||Devon W. Carbado||1130|
|When to Overthrow your Government: The Right to Resist in the World’s Constitutions||Ginsburg et al.||1184|
|Interbank Discipline||Kathryn Judge||1262|
|A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement||Nicole M. Howell||1324|
June 30, 2013 at 4:01 am Posted in: Civil Rights, Financial Institutions, First Amendment, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Politics, Race Print This Post No Comments
posted by Danielle Citron
My amazing colleague, guest blogger, and now President and Director-Counsel of the NAACP Legal Defense and Education Fund Inc. Sherrilyn A. Ifillhas a superb Op-Ed in the New York Times about the impending decision in Fisher v. Texas:
The decision is in. All consideration of race in college admissions is over.
No, the Supreme Court has not yet announced its decision in the landmark case of Fisher v. University of Texas; that ruling is expected any day now. But an alarming number of scholars, pundits and columnists — many of them liberal — have declared that economic class, not race, should be the appropriate focus of university affirmative-action efforts.
How can we explain this decision to throw in the towel on race-based affirmative action? Are we witnessing a surrender in advance of sure defeat? Or just an early weariness with a debate that, a decade ago, Justice Sandra Day O’Connor predicted would last another 25 years?
Perhaps it is the presence of a black president that has encouraged so many to believe that race is simply no longer a significant factor in American life. It is true that we have come a long way since the days of Jim Crow segregation. But the plain fact is that race still matters. Read the rest of this post »
Racial Uplift or Racial Scolding: The Baggage of Symbolic Representation in President Obama’s Speeches to Black Americans
posted by Taunya Banks
I was invited to stay around another month but a personal loss and the press of grading papers overwhelmed me. With apologies to the organizers, this is my first and last post for this month.
President Obama’s commencement speech at Morehouse College on May 19th triggered a debate in some corners of the blogger sphere that included notables like PBS’ Gwen Ifill and white studies scholar Tim Wise about his tendency to scold black folks. In its heyday Morehouse College, a private all-male historically black institution in Atlanta, educated many of the black male elite like Martin Luther King, Jr., filmmaker Spike Lee, former Bank of America Chairman Walter E. Massey, former United States Surgeon General David Satcher, former Secretary of Health and Human Services Louis W. Sullivan, film star Samuel Jackson, and social activist Julian Bond. Today it continues its mission producing Rhodes, Fulbright, Marshall and Luce Scholars, and Watson and White House Fellows. Thus he was speaking to a group of future leaders who happened to be overwhelmingly black.
I was a bit surprised at the uproar, especially when several acquaintances thought the Morehouse speech more significant than his speech a few days later on his administration’s drone policy. I have been increasingly troubled by this administration’s extrajudicial killings by drones of American citizens abroad. Thus I decided to more closely examine the controversy. Read the rest of this post »
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.