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Abstract:
Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over one million children are currently being homeschooled. Although homeschoolers are a diverse group, the movement has come to be defined and dominated by its fundamentalist Christian majority. Many Christians who choose to homeschool do so in order to shield their children from secular influences and liberal values. In response to political pressure from this group, states are increasingly abdicating control and oversight in this realm. Modern-day homeschooling thus raises important questions concerning the obligations of states toward children raised in illiberal subgroups. Surprisingly, the legal and philosophical issues raised by homeschooling have been almost entirely ignored by scholars. This Article seeks to begin to fill this void by examining the constitutional implications of state abdication in this area. The Article relies on federal state action doctrine and state constitution education clauses to argue that states must regulate homeschooling to ensure that parents provide their children with a basic minimum education. Further, the Article argues that the Equal Protection Clause imposes limits on the degree of sexist homeschooling that states may permit. In other words, while there is an upper constitutional limit on states' ability to regulate and control children's education, there is a lower limit as well. States may not avoid this mandated minimum with constitutional impunity.

Abstract:
Homeschooling in America is no longer a fringe phenomenon. Estimates indicate that well over a million children are currently being homeschooled. Although homeschoolers are a diverse group, the homeschooling movement has come to be defined and dominated by its fundamentalist Christian majority many of whom choose to homeschool in order to shield their children from secular influences and liberal values. In response to political pressure from this group states are increasingly abdicating control and oversight over homeschooling. Modern day homeschooling raises then in stark form questions about the obligations that states have toward children being raised in illiberal subgroups. Surprisingly, the legal and philosophical issues raised by homeschooling have been almost entirely ignored by scholars. This paper seeks to begin to fill this void by making a novel constitutional argument. The paper relies on federal state action doctrine and state constitution education clauses to argue that states must — not may or should — regulate homeschooling to ensure that parents provide their children with a basic minimum education and check rampant forms of sexism. This paper argues, in other words, that while there is an upper limit on how much states can constitutionally regulate and control children's education, there is a lower limit as well. There is a minimum level of regulation and oversight over children's education that states may not with constitutional impunity avoid.

Abstract:
Title VII of the Civil Rights Act of 1964 was passed at a time when discrimination based on race was open and categorical. Discrimination today often takes a different and more complex form. It may be driven not by racial status per se but by traits and attributes that are culturally or statistically associated with race. An employer may be perfectly willing, perhaps even eager, to hire blacks who dress, talk, and act in a particular way, but unwilling to hire blacks who deviate from the employer's cultural norm. The debate over appropriate legal responses to trait discrimination has, thus far, taken place largely in generalities and at a high level of theoretical abstraction. The discussion has been about the harms of assimilation versus the dangers of essentialism. Yet the question of when, if ever, antidiscrimination law should prohibit employers from engaging in racially and culturally associated forms of trait discrimination is one that can only be answered by looking at particulars. This paper categorizes the varied and complex ways in which employers engage in trait discrimination and suggests an appropriate legal response to each form. While the paper concludes that antidiscrimination law must extend its protection beyond simple forms of status discrimination to some forms of trait discrimination, its proposed responses are necessarily nuanced and context specific - taking into account the nature of the trait at issue, its importance to protected group members, and the reasons for the employer's prohibition.

discrimination, employment, race

Abstract:
Title VII prohibits discrimination whereby women or men are denied employment opportunities because of their status as such. Much of the employment discrimination taking place today, however, targets not all women or men, but only those with particular traits or characteristics - for example, women who are aggressive or men who are effeminate. This article addresses the question of when, if ever, trait discrimination is actionable sex discrimination under Title VII. The dominant response advocated by scholars has been to require employers to act in a rigid and formalistically sex-neutral manner toward their employees. If an employer allows female employees to wear dresses, the employer must allow male employees to wear dresses as well. To do otherwise is actionable sex discrimination. This paper suggests a new response to trait discrimination that returns to Title VII's original focus on ending status-based hierarchy. The power/access approach advocated in this paper treats trait discrimination as actionable sex discrimination only when it stems from gender norms and scripts that are themselves incompatible with sex equality in the workplace. The paper contends, in contrast to most current argument, that rigid sex neutrality is neither required by Title VII nor socially desirable.

Political Theory, Discrimination

Abstract:
This paper explores whether Title IX's proportionality requirement can be justified under any of three standard civil rights frameworks. The proportionality requirement has been widely criticized for failing to follow the "careers open to talents" model enforced by Title VII. The paper argues that the critics are correct that the proportionality requirement is inconsistent with the careers open to talents model but contends that the critics' own distribution proposals are also inconsistent with this model. The paper next considers whether the proportionality requirement can be justified by either of two other civil rights models: a utilitarian model (of the sort that underlies the Individuals with Disabilities Education Act) and what is referred to in the text as a tool-giving model (of the sort that underlies the school financing cases). Neither model provides an adequate justification for the proportionality requirement, however. Finally, the paper examines whether the proportionality requirement might best and most honestly be justified on the grounds that it encourages girls to participate in activities and develop traits and attributes that are widely socially valued. The paper concludes that the proportionality requirement is indeed best understood and justified as an openly "perfectionist" resocialization measure.

Gender, Sports, Women and Title IX

Abstract:
This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory - the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture - in particular society's ongoing commitment to racial transcendence and gender essentialism.

sex stereotyping, gender identity, racial identity, sex discrimination, race discrimination

Abstract:
Discrimination on the basis of sex in employment is illegal - usually. In cases in which employers contend that sex-based hiring is necessary to protect the privacy interests of their customers, however, and in cases in which employers contend that sex-based hiring is necessary to provide a particular type of sexual titillation for their customers, courts sometimes do allow employers to discriminate. This paper seeks to explain and defend why courts distinguish in the ways they do between permissible and impermissible forms of sex discrimination in employment.

Courts say that they allow sex discrimination in employment when it is necessary to preserve the "essence of the business." However, this paper shows that there is no plausible conception of business "essence" that can explain and make sense of the existing case law. In other words, the courts' rhetoric simply cannot explain their actual decisions.

Instead, courts' far greater permissiveness toward sex discrimination in privacy cases than in sexual titillation cases can be better understood on two other grounds. First, the courts' divergent treatment of these two kinds of cases reflects a standard liberal concern about group-based equality of opportunity. Second, the courts' decisions reflect a distinctly non-liberal hierarchy in which preferences for privacy are given priority over desires for sexual titillation because the former are seen as being more important and integral to an individual's sense of self.

Moreover, within sexual titillation cases, courts rigidly bifurcate the work world between sex businesses (wherein sex discrimination is permissible) and non-sex businesses (wherein sex discrimination is impermissible), and they simply do not permit "plus sex" businesses (those that sell sexual titillation along with some other good or service) to exist. This paper argues that although these decisions are consistent with liberal equality of opportunity concerns, they are better justified on non-liberal grounds. These decisions promote women's intellectual and rational development by protecting them from the dangers of ubiquitous social sexualization. Indeed, women's intellectual development and achievement does seem to require, more so than men's, the preservation of social contexts in which they cannot be explicitly sexualized.