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Tagged: Race

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Special Kids, Special Parents

First, many thanks to my exceptional and delightful colleague, Danny Citron, for inviting me to blog on Concurring Opinions. My blogging goal is to get you to focus on how law and policy could attend to the needs of family caregivers of special needs children. “Four in ten adults in the U.S. are caring for an adult or child with significant health issues,” according to a new Pew Research Center study. One would think that this large and growing population of family caregivers would command some attention. If they refused to do the job, after all, millions of frail elderly people, permanently-disabled veterans, and chronically-ill and disabled children could be left with nobody to meet their physical, emotional or medical needs. Social welfare organizations and institutions would be overrun, and social provision expenditures would skyrocket.

Refusing to do the job is not an option for many family caregivers, of course, for thousands of reasons, including love, duty and generosity of spirit. But many pay a price in terms of physical health, social isolation, and economic security. In my work about families raising children with special needs, I argue that we need to find ways to spread the costs so that they do not continue to fall almost exclusively on family members who step up.

Here are three examples of law and policy being blind (or at least astigmatic) to the impact of care-giving on these parents. First, when a child’s parents divorce or separate, family law entitles the parent who lives with the child to child support and, in some unusual situations, alimony. Child support is calculated on the basis of the child’s needs, and alimony is determined based on what the payee needs. Both assume that, ordinarily, both of the child’s parents will be economically productive. Where the parent’s special care-giving responsibilities interfere with that parent earning a living, however, child support and alimony are not usually adjusted–there’s no “chalimony.” Second, the public benefits system picks up very little of slack for parents when special care-giving responsibilities interfere with the parent’s earning capacity. Worse yet, since the mid-1990s, states became subject to increasingly stringent requirements in federal law about tying public benefits to the efforts of recipients to get and hold employment. A different route is not unimaginable: in 2009, a stipend was enacted for family caregivers of veterans left permanently disabled during their service in recent wars. Nothing similar, however, exists for parents. Third, if a child’s special needs affect his or her ability to benefit from school, federal law has guaranteed since the mid-1970s that the child will nonetheless be provided with a “free and appropriate public education.” The statute is not blind to the child’s caregivers; in fact, it gives parents specific rights in terms of participating in planning the child’s educational program. What it does not do, however, is make sure that parents can exercise their rights in ways that make sense if their lives are over-stressed because they are caring for special needs children.

As my work continues, I’m looking for additional examples of law and policy that attend to the needs of family caregivers for special needs children, and to those that don’t. If you can suggest a new avenue of research, please let me know.

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Does Blind Review See Race?*

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 More

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In Defense of Law Review Affirmative Action

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 More

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Expanding Bob Jones University v. United States

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?

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The Boy Scouts and Discrimination

Imagine the Boys Scouts of America discriminated on the basis of race. In this hypothetical, no black parents are allowed to lead troops, and no black children are even allowed to join them. If your child were eligible, would you let him become a Boy Scout? My guess is that the answer would be no. There are plenty of alternative extracurricular activities available, including other scouting clubs, so why belong to a racist one whose policies stigmatize innocent children and perpetuate hostility towards a group based on a completely irrelevant characteristic? In fact, you might not want to support them in any way. The federal government certainly does not: groups that discriminate on the basis of race are ineligible for government funding and cannot qualify as a tax exempt organization. In short, no government money would flow to them, not even in the form of tax breaks. As an expressive association, the Boy Scouts might have a constitutional right to discriminate, but that doesn’t mean that our tax dollars should help them.

In recognition of National Coming Out Day on October 11, let’s tweak the hypothetical and substitute sexual orientation for race. Shouldn’t the results be the same?

 

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Affirmative Action and Merit

The Supreme Court is set next week to hear the affirmative action case of Fisher v. University of Texas at Austin. Many people are troubled by affirmative action because they are convinced that it means less qualified (non-white) students are admitted over more qualified (white) ones. To them, that just seems unfair. (One may wonder how it compares to the unfairness of a public education system that generally offers much better schooling to suburban (white) students.)

In any case, how reliable is their measurement of merit? As an initial matter, if diversity in itself is valuable, then the ability to add to it makes you more qualified then someone who cannot. Of course, what people usually have in mind are test scores, grades, and recommendations. Yet do the best grades and recommendations, for example, necessarily go to the best students? Studies on unconscious biases suggest the answer may be no. Take the most recent entry in a long series of studies revealing that identical qualifications are evaluated differently based on the race or sex of a candidate. In this randomized double-blind Yale study, science professors were asked to evaluate men’s and women’s resumes. The resumes were exactly the same except that some bore a man’s name (John) and some bore a woman’s (Jennifer). Both men and women rated the male candidates higher, and were willing to pay them more. Again, these were the exact same resumes. It is not a huge leap to think the same kind unconscious bias regularly occurs in classrooms across the country — and this is only one way that unconscious bias might lead to unfair assessments.

Granted, affirmative action may be a crude way to compensate for structural inequality and unconscious biases. But realistically, what are the alternatives?

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Is “racial balance” always discriminatory?

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.

 

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Identity, Language, and Discrimination

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.

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Diversity Day!

“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”

As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.

Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.

But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”

Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.

As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.

Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.

Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”

The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.

And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.

Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.

But perhaps an awkward commitment to justice is better than no commitment at all.

P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.

P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.