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Abstract:
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII's timely complaint and retaliation doctrines create an untenable framework for employees in need of the law's substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.

discrimination, Title VII, gender, retaliation

Abstract:
Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. The Article then elaborates upon and offers a justification for the theory of equality underlying Title IX's three-part test. To support this theory, the Article surveys existing feminist legal scholarship on sport and identifies a need for an analysis of women's position in sport that goes beyond a debate over assimilation versus accommodation, to analyze how educational institutions participate in the construction of sport as a fundamentally masculine domain. To fill this void, the Article explores in detail the processes through which educational institutions construct the different relationships of men and women to sport, through their control over athletic opportunities and the culture of sport. Finally, Professor Brake takes this theory and applies it to other aspects of Title IX law, advocating specific doctrinal reforms that would make Title IX's overall application to athletics more consistent with the theory articulated in this Article.

Education Law, Employment Practices, Sports, Women

Abstract:
This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in antidiscrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law's approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash.

Following an introduction in Part I, Part II of this Article examines legal pragmatism and its relationship to feminist legal theory, arguing that both schools of thought have the potential to enrich one another. Part III provides an account of the multiple forms of gender oppression in sports, following pragmatism's insight that any sound theoretical approach to a problem must be grounded in the particularities of the context surrounding that problem.

Part III argues that given the slipperiness of subordination and its shifting practices and ideologies, we should not expect a unitary, consistent theory of discrimination to address it. Finally, Part IV examines the plural approach to theory reflected in Title IX, arguing that Title IX's eclectic approach to theory explains why this law has been unusually successful in navigating the double-bind and shaping cultural norms to fend off a backlash. The Article concludes that, though far from perfect, Title IX provides a promising example of how pragmatic approaches can shape successful feminist legal strategies.

civil rights, women/gender, discrimination law, sports, feminist legal theory

Abstract:
This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its core, the decision turns on a cramped and narrow understanding of what it means to discriminate on the basis of sex. This understanding has broader implications for sex equality law than the procedural hurdles the decision presents for victims of pay discrimination pursuing Title VII claims. By choosing the most narrow, limiting conception of discrimination, the Court's decision undermines the potential for statutory law to fill in the details of the Constitution's promise of equal protection in three respects. First, by adopting a narrow and restrictive conception of what constitutes discrimination, the Court further dilutes the strength of statutory antidiscrimination law, which has long been the primary source of sex equality guarantees in modern U.S. law. Second, by further narrowing the category of acts that constitute unlawful, intentional discrimination, the Court continues its trajectory of leaving Congress less room to legislate broader equality mandates under Section Five of the Fourteenth Amendment. Finally, by contributing to a legal culture that recognizes discrimination only in its most obvious forms, the decision adds to the legal narratives that make it difficult to perceive more subtle forms of discrimination. An overly narrow definition of discrimination legitimizes status quo inequalities, promoting the perception that choice, ability, or some undiscovered factor must be responsible for whatever inequality remains. For these reasons, I argue that Ledbetter is a decision that significantly undercuts the Constitution's promise of equal protection of the law, despite its statutory and procedural trappings.

equal protection, discrimination, sex equality, Title VII, Fourteenth Amendment

Abstract:
This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.

Title IX, sexual harassment, peer sexual harassment, student harasser, discrimination, school liability, civil rights, gender equity, hostile environment

Abstract:
This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their concerns in ways the law and scholarship have yet to do. The article focuses on several under-theorized areas: among them, how the push for greater Title IX enforcement in the context of ongoing inequalities in public education has ignored the deeper educational inequalities and educational policy issues that provide the broader context for sports programs, and the impact of policies concerning pregnancy and motherhood on female athletes. The absence of attention to these issues in the discourse and public policy debates surrounding Title IX undermines the law's transformative potential and its ability to succeed in enhancing the sports experiences of all women.

Title IX, sports, race, gender, discrimination, civil rights, education

Abstract:
The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program depicting the struggles faced by college athletes who become pregnant and risk losing their athletic scholarships. Shortly thereafter, the Department of Education's Office for Civil Rights issued a policy letter interpreting Title IX to provide a strong set of rights to pregnant athletes, including the right to keep athletic scholarships. This article explores Title IX's approach to pregnancy discrimination and evaluates the cultural changes and legal choices that made this success possible. The article argues that by adopting an approach that draws from both "accommodation" and "equal treatment" models of equality, Title IX takes a blended approach that is preferable to either model in isolation. While the article contends that Title IX provides relatively strong protection for athletes who become pregnant, it concludes by examining some limitations on Title IX's ability to promote progressive social change on this and related issues of sex equality in sport.

pregnancy, athletes, Title IX, feminist legal theory

Abstract:
This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality.

Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions.

Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship.

Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here.

civil rights, discrimination, equality, inequality, social practice, international discrimination, retaliation

Abstract:
This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term "leveling down" refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that focuses on the expressive meaning of leveling down and its compatibility with a norm of equal concern. It concludes with a section demonstrating how the proposed analysis would enrich the debate among legal scholars over the normative appeal of equality rights.

civil rights, equalization, equity, inequity, bias, prejudice, favoritism

Abstract:
This essay addresses three issues surrounding Title IX's application to women's sports that have been largely eclipsed by the recent controversy over Title IX's three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men's sports as a remedy to discrimination against women; and the role of revenue and massive spending on men's elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is needed to fulfill Title IX's promise.

civil rights, title IX, gender, athletics, sports, women, inequality

Abstract:
This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.

Title IX, sexual harassment, peer sexual harassment, student harasser, discrimination, school liability, civil rights, gender equity, hostile environment