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Abstract: Justice Clarence Thomas has generated the attention that most Justices receive only after they have retired. He has been boycotted by the National Bar Association, caricatured as a lawn jockey in Emerge Magazine, and protested by professors at an elite law school. As a general matter, Justice Thomas is viewed as a "non-race" man, a Justice with a jurisprudence that mirrors the Court's most conservative white member, Justice Antonin Scalia, in other words, Justice Scalia in "blackface." This Article argues that, although Justice Thomas's ideology differs from the liberalism that is more widely held by Blacks in the United States, such ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. In so doing, this Article examines the development of black conservative thought in the United States; highlights pivotal experiences in Justice Thomas's life that have shaped his racial identity; and explicates the development of Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.
Abstract: Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry. The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown by the study, in many instances, employers rely on proxies for race, such as a person's name, to exclude an applicant from consideration. Outside of the context of age and national origin discrimination, very few scholars have examined the problem of proxy discrimination, and none have analyzed how to address such discrimination as it relates to race in light of theories regarding the social construction of race, in particular what it means to be correctly or incorrectly perceived as belonging to a certain racial group on the hiring market. This Article borrows from the definition of disability under the Americans with Disabilities Act (ADA) and the courts' analyses of disability discrimination cases under the regarded as disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity, to propose a new method for analyzing race-based proxy discrimination claims. Part I examines the ways in which race is socially constructed and analyzes several studies to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market for those perceived as belonging to certain racial groups. Part II analyzes the current framework under Title VII for evaluating individual disparate treatment cases based on race and describes how federal courts have failed to recognize the way in which race is socially constructed. Part III then borrows from a framework used in proving disability discrimination to argue for the inclusion of race discrimination claims where one is, for example, regarded as black, with all of its collective negative imaging, to redress discrimination in the workplace. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.
Abstract: In 1996, the United States Congress began its imposition of a marital solution to poverty when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"). Nearly ten years later, Congress has strengthened its commitment to marriage as a cure for welfare dependency with proposals such as the Personal Responsibility, Work, and Family Promotion Act of 2005. If passed, this bill would provide 1.5 billion dollars for pro-marriage programs and require each state to explain how its welfare program will encourage marriage for single mothers who receive public aid. With these proposals, Congress has continued to construct poverty as a private rather than public problem. These programs, designed to move poor individuals into the husband-wife, normatively heterosexual dyad, are part of a long-term plan for privatizing economic responsibility for children in impoverished households. This Article situates recent welfare debates concerning the Temporary Assistance to Needy Families ("TANF") program, in particular those debates concerning the proposal of the "marriage cure," within a post-colonial context and examines, both historically and currently, how the law of marriage has been used in the United States as a tool for "civilizing" outsiders. Part I analyzes how marriage laws were used in the post-bellum period as a means of minimizing states' economic responsibility to provide for newly-emancipated Blacks, especially former slave children. Part II scrutinizes the racialization of welfare recipients in the United States in recent history and dissects current and proposed TANF marriage-promotion provisions to reveal how marriage and law are again being operated as tools for domesticating welfare queens. Finally, this Article concludes by exploring alternatives to this proposed marriage cure to poverty.
Abstract: Justice Clarence Thomas, the second black man to sit on the Supreme Court, is famous, or rather infamous, for his opposition to affirmative action. His strongest critics condemn him for attacking the very preferences that helped him reach the Supreme Court. None, however, have considered how Thomas's life itself may be used as a justification for affirmative action. In what ways can the master's "tool" be used to dismantle his house? This Article analyzes Justice Thomas's appointment to the Supreme Court and contends that his nomination to and performance on the Court ironically make the case for forward-looking affirmative action. Specifically, this Article examines various pro-affirmative action arguments, such as the benefit of cross-racial understanding through interracial diversity, the destruction of stereotypes through an exposure to intraracial diversity of viewpoints, and the redefining of traditional standards of merit, and then utilizes such reasoning to explain how Justice Thomas himself actually lends support to a continuation of forward-looking affirmative action.
Abstract: This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly in law school, drop out, fail the bar examination, and never become lawyers. In this brief response, we contend that Professor Sander's analysis is misdirected and narrow, and we highlight two shortcomings of the article. First, noting other studies that maintain that Professor Sander's empirical work does not support his conclusions about the effects of affirmative action on African American law students, we raise the important issue of maintaining racial diversity in law schools, a key point relevant to affirmative action, which Professor Sander ignores throughout his article. In so doing, we examine Professor Sander's failure to offer alternatives of what policies might more fully diversify law schools and ensure educational opportunity for all. We also explore Professor Sander's charges of a lack of candor by law schools about the salience of race in admissions decisions, charges that not only mischaracterize the admission process at many law schools but also fail to encourage an open and honest dialogue about the problem of minority underrepresentation in law schools. Second, we critically examine Professor Sander's assumption that relatively lower undergraduate GPAs and LSAT scores explain why African-American students fail to fare as well academically in law school as their white peers. In so doing, we highlight Professor Sander's neglect of other significant factors likely to correlate with poor performance, in particular the well-documented hostile environment faced by African American, and other minority, students in law schools and the manner in which such an environment may adversely affect their academic performance. Finally, this article explores steps that law schools may take to improve the experiences of African American and other minority students within their corridors.
Abstract: This review essay analyzes Derrick Bell's provocative new book, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004). In Silent Covenants, Professor Bell reviews Brown v. Board of Education, and inquires "whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena." Specifically, Professor Bell joins black conservatives in critiquing what he describes as a misguided focus on achieving racial balance in schools and argues that the quality of education for minority children, in particular Blacks, would have been better today had the Supreme Court instead decided simply to enforce the "equal" component of the "separate but equal" doctrine of Plessy v. Ferguson. In this book review, For Whom Does the Bell Toll: The Bell Tolls for Brown?, Professor Onwuachi-Willig recommends Professor Bell's book as a thought-provoking critique of a decision that has been championed by persons of all races and ethnicities. Although agreeing with Bell's interest-convergence theory, his thorough explanation of historical instances in which policymakers have sacrificed the rights of minorities in the United States, and his arguments concerning white resistance to integration, she disagrees with Professor Bell's conclusion that enforcement of the "separate but equal" doctrine would have proved more effective than the strategy that civil rights lawyers employed in arriving at Brown. Overall, she argues that Bell's approach to achieving such equality likely would have landed minorities in the same position as they are in today. In so doing, she details Bell's explanation of the promise of Brown and the ways in which its failure is merely a continuation of the disregard for the rights of minorities (except when such rights coincide with the interests of Whites). She then demonstrates how Bell's own interest-convergence theory does not support his criticism of Brown and his endorsement of the "separate but equal" strategy that he claims ultimately would have served minorities the best. Finally, she explores the potential for coalition building between minorities and poor Whites by examining recent events and occurrences surrounding the debate about the Texas Ten Percent Plan.
Abstract: Two years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first generation black immigrant students in the United States, second generation black American students, and mixed race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Oberlin, the University of Michigan, the University of North Carolina, the University of Pennsylvania, Smith, and Yale. For many of those concerned about how affirmative action advances social justice, this growing number of first and second generation black students and, and to a lesser extent, mixed race students has become a cause for concern. To these people, such rising numbers, especially those of first and second generation black students, indicate that affirmative action programs are failing to reach those who are the original targets of the policy: native black Americans who descend from slaves in the United States, a group that I refer to as legacy Blacks. This Article explores policy questions concerning which Blacks should be the beneficiaries of affirmative-action programs and specifically tackles the issue of how such programs may be restructured so that they can begin to reach more legacy Blacks. In so doing, this Article does not contest the need to consider race as a factor in the admissions process at colleges and universities. Undoubtedly, race deeply affects the perceptions, experiences, consciousness, and opportunities of all Blacks, regardless of their ancestry and class status; thus, race is a valuable indicator to use in determining whether an individual may bring a perspective to the campus or classroom that is currently underrepresented. Yet, relying on findings from studies that suggest general educational, economic, and cultural differences between legacy Blacks and non-legacy Blacks, this Article explains why considerations of racial diversity alone may not be sufficient to effectuate the intent of affirmative action laws during the admissions process, and why considerations of ancestral heritage should be a part of any school's racial preference admission policy. At the same time, however, the Article examines why the need to explore the ethnic backgrounds of black applicants should not work to exclude first- and second-generation Blacks and mixed-race students from affirmative-action programs. In effect, this Article argues that, while statistical studies suggest that economic, educational, and cultural differences between legacy Blacks and non-legacy Blacks warrant a consideration of ancestral heritage in affirmative action programs, an exclusion of first- and second-generation Blacks and mixed-race students from such programs is unwarranted. To the contrary, the inclusion of first- and second-generation Blacks and mixed-race students in these programs actually furthers both the diversity and social justice goals of affirmative action. More importantly, this Article contends that this entire debate about whether first- generation Blacks, second-generation Blacks, and mixed-race students should be eligible for affirmative action helps to expose the flaws of an admissions system that focuses solely on the endpoint of students in their academic career rather than measuring the distance between where the students started their lives in terms of (dis)advantage and the point to which they were able to climb in their academic journeys. Finally, this Article stresses the importance of re-evaluating traditional admissions standards at elite colleges and universities, an act that can aid schools in the admission of legacy Blacks and other disadvantaged students.
affirmative action, native Blacks, immigrants, first generation, second generation, mixed race, stereotype threat, disadvantage, standardized tests
Abstract: This essay explores the past and present social meanings of what occurred during a 1920s New York trial court case, Rhinelander v. Rhinelander. Rhinelander involved a claim by Leonard Kip Rhinelander, a white socialite, who filed for annulment of his marriage to Alice Beatrice Jones, a woman of racially ambiguous heritage. Leonard claimed that Alice committed fraud that went to the essence of their marriage by failing to inform him that she was of "colored" blood. According to legend, Leonard and Alice were madly in love, and Leonard filed the lawsuit only because of his father, who refused to accept the relationship. As the story goes, Leonard told Alice to fight the case to ensure that they could be together as husband and wife. Thus, it was a surprise when Alice chose not to "litigate" her whiteness but instead admitted that she was of "colored" descent and argued that Leonard was aware of her race before the marriage. The jury shockingly returned a verdict for Alice. Rhinelander is often read as a victory for race relations - a victory of a black working-class woman over a wealthy, white male socialite. This essay examines Rhinelander not as a racial victory, but instead as a testament to hierarchies of race in society, societal desire by Whites for legal recognition of the idea of biological race, and the "punishments," both legally and socially, that can be imposed upon those who dare to transgress racial boundaries of familial intimacy. Part I of this Essay describes the romance of Alice and Leonard Rhinelander and Leonard's actions in filing for an annulment of their marriage. It also details the event of the trial itself and explains the different trial strategies employed by the parties' attorneys in this complex legal battle. Part II focuses on the voice given to Alice, who never testified at trial, by exploring the reasons behind her attorney Lee Parsons Davis's chosen trial strategy for his client and the reasons why Davis was able to succeed in winning the case for Alice, a colored woman, against Leonard, a wealthy white socialite, in 1920s New York. Finally, Part III analyzes Alice's seeming powerlessness over selecting her own defense strategy and defining her own racial identity within the context of today's society. This Part also examines how these simultaneously flexible and inflexible, but exclusionary methods for classifying people according to race work to maintain racially segregated boundaries of love and intimacy in a way that continually fails to unpack cross-racial inequalities and merely stabilizes a pyramid of intimate relationships that leave black-white love at the bottom of the ladder. Overall, this Essay concludes by identifying how Rhinelander foreshadowed the continuing role of racial classifications in maintaining segregated lines of love and intimacy.
Family Law, Discrimination, Anti-miscegenation, Interracial, Annulment, Marriage, Race, Eugenics
Abstract: This Essay argues in favor of legally recognizing same-sex marriages by exploring the similarities in passing between members of same-sex marriages/relationships and interracial marriages/relationships. Specifically, this Essay unpacks the claim that the ability of gays and lesbians to pass as heterosexual distinguishes the ban on same-sex marriages from former bans on interracial marriages. Part I of this Essay first describes policy-based critiques of a Loving-based argument for legalizing same-sex marriage, or as one scholar has coined, of playing the Loving card by analogizing the racism that motivated anti-miscegenation statues that the Supreme Court struck down in 1967 to the anti-gay animosity that motivates contemporary opposition to same-sex marriages. In particular, it focuses on critiques by black religious leaders against analogizing the prior ban on interracial marriages to the current prohibition of same-sex marriages because of the ability of gays and lesbians to pass as heterosexual. Part II of this Essay briefly describes social constructionist theories of identity and explores the various ways in which Blacks and gays, lesbians, and bisexuals may pass, both in a physical and a social sense, to avoid forms of discrimination. Part III then clarifies what Loving's got to do with it by exploring the congruencies between passing in the context of interracial and same-sex relationships and argues that social constructions of race and sex have enabled both types of passing. Finally, this Essay defends the legal recognition of same-sex marriages on the basis of these parallels.
Abstract: This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law school and non-affirmative action law schools; and 3) no significant impact from external stigma.
race, affirmative action, education, law school
Abstract: This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial.
This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw's theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories.
Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court. Part III.B details the categories of plaintiffs who can allege discriminatory action "because of" race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories.
Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for "interraciality" to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the "expressive harms" or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial.
This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive.
housing, discrimination, title VII, interracial, marriage, Loving, race, racism, privilege, whiteness
Abstract: In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to further entrench racial hierarchies in our society. In particular, I focus on how this new form of multicultural couples casting can reinforce the racial hierarchies that existed in the anti-miscegenation statutes that were struck down in Loving v. Virginia, statutes that were struck down because they promoted white supremacy by prohibiting interracial marriages between Whites and non-Whites but not prohibiting marriages with non-Whites of different races. In Part II, I detail statutory law, specifically Title VII, and case law regarding employment discrimination based on customers' preferences to investigate how and when, given the First Amendment, current law can be used to eliminate discrimination through casting in the entertainment industry. This Essay concludes by highlighting the need to and importance of challenging general societal practices that work to maintain racial boundaries of love and intimacy.
marriage, realtionship, interracial, Title VII, discrimination, casting, First Amendment, film, casting, culture, race, racism, Loving
Abstract: In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.
courts, judges, representation, diversity, civil rights, voting, Supreme Court
Abstract: In this Essay, I focus on the dispute concerning the alleged racial motivations behind the recent NBA dress policy. In particular, I explore one recurring theme throughout the NBA dress code debate: the way in which comments by black players and commentators who supported the code and viewed it as non-discriminatory were seen and used as powerful tools to directly refute claims of racism by black players who believed that the enactment of the code was racially motivated. I analyze this recurring theme as a means of examining the evidentiary power of what I call "black on black" testimony in employment discrimination cases. As I see it, this theme adds an important layer to our current understanding about how witness testimony by minorities against other minorities can be improperly weighed during the fact-finding process.
To that end, I use the debate about the NBA Dress Code as a case study to identify three different categories of performative behavior by Blacks: (1) accommodating, which occurs when racial outsiders accept dominant cultural norms as a means of advancement, without any concern about or challenge of their potentially racialized meanings; (2) distancing, which occurs when conforming outsiders consciously work to distinguish themselves from other racial outsiders who reject dominant cultural appearance standards and performances; and (3) resigned modeling, which occurs when racial outsiders do not necessarily buy into mainstream definitions of culturally acceptable norms but resign themselves to these norms for the sake of serving as role models to those in their group who may look up to them. I contend that each of these behaviors constitute a form of "volunteer discrimination" and must become an integral part of juries' and courts' evaluations of testimony from pro-defendant minority witnesses in race discrimination cases. In fact, looking at the NBA dress code debate itself, I contend that, rather than negating allegations of racism, the reactions of the policy - defending black NBA athletes and leaders actually may highlight the immense pressures that Blacks have in our society to perform their identity in a way that is racially palatable - in other words, accommodating of cultural norms that place what is perceived as being white at the top of the social hierarchy and what is perceived as being black at its bottom.
employment, discrimination, Title VII, NBA, dress code, evidence, testimony, race, racism, anti-subordination, working identity
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