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Abstract:
On the 40th anniversary of Loving v. Virginia, Queer as Black Folk? critiques mainstream lesbian, gay, bisexual and transgender (LGBT) political advocacy that invokes the "same as mantra" - comparing LGBT rights to black civil rights - as an organizing strategy to build meaningful coalitions between LGBT and black communities. Although such comparisons are necessary in courtrooms or legal briefs in which advocates are bound by legal precedent, sameness arguments fall short as a technique to foster interracial dialogue on LGBT issues. This article uses social psychology literature to explain why sameness arguments fail and offers an alternative model for forging LGBT-black coalitions.

Social Identity Theory ("SIT") explains how individuals, as self-identified members of groups, engage in group behaviors that lead to in-group favoritism and out-group derision. The LGBT sameness arguments, criticized in this article, trigger these in-group/out-group dynamics between white LGBTs and black heterosexuals (and black LGBTS), creating significant barriers to cross-group coalitions and understanding. LGBT advocates should avoid sameness arguments and reframe the dialogue.

In order to unify subordinated groups, LGBT advocates of all races must reframe the discussion around what social psychologists call superordinate goals — objectives that are important to members of both LGBT and black communities and are difficult to achieve separately. Doing so will allow LGBT and black communities to develop unifying theories that challenge not only homophobia, but racism and sexism as well. Queer as Black Folk? offers two examples of potential superordinate goals for advocates' consideration: the prevention of discrimination against members of both communities (black LGBTs), and the expansion of the definition of "family".

Abstract:
This article advocates that lawyers use the tort of intentional infliction of emotional distress to challenge and deter bias-motivated harassment on the Internet and contributes important observations about the evolving tort of outrage, the changing face of extremist activities and the growing debate about First Amendment freedoms on the Web.

After a brief discussion of on- and off-line harassment by racist extremists, the article turns to the facts of Housing and Urban Development v. Wilson, HUDALJ 03-98-0692-8 (July 19, 2000), to demonstrate the viability of the intentional infliction of emotional distress as a tool to challenge hate-motivated harassment via the Internet. First, the tort permits a contextual analysis that encompasses the online medium's unique challenges - its force multiplier effect, its viability as a tool of anonymity and the inadequate response of law enforcement to Internet conduct - challenges which fuel emotional harms. Second, in reliance upon the analysis of the Ninth Circuit en banc decision in Planned Parenthood of the Columbia/Willamette, Inc v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (6-5 decision), the article argues that the tort of intentional infliction of emotional distress does not infringe on a hate monger's First Amendment rights, because Web postings that make serious threats of violence against specific individuals constitute "true threats."

Abstract:
Most lawyers, judges, and members of the legal academy are well versed in the underlying rationales for criminal conspiracy law -- that punishing a conspiracy as a separate crime protect[s] society from the dangers of concerted criminal activity and the greater threat to social order. While this group dangers rationale thrives in criminal conspiracy law, its absence from the interpretation of 42 U.S.C. § 1985(3) has led a majority of federal courts to apply a legal fiction from anti-trust law, the intracorporate conspiracy doctrine, that shields racist conspirators from § 1985(3) liability.

This article argues that federal courts should recognize the special dangers of race-based conspiracies, reject the intracorporate conspiracy doctrine as they have done in criminal law, and hold racist corporate officers liable for racially driven intracorporate conspiracies under § 1985(3).

Drafted during the Reconstruction era to counter white resistance to blacks' civil rights, § 2 of the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1985(3), prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the laws. The 1871 Congress enacted the statute to combat the special dangers of race-based collective action, based largely on a common sense that conspiracies present unique threats. Today, common sense no longer serves as the sole basis to treat collective action differently than individual action.

This article uses current social psychology literature to demonstrate that race-based conspiracies pose special dangers to society. Driven by in-group favoritism -- not just out-group derision -- individuals act based on racial distinctions that lead to three group dynamics, identified in this article for the first time: racial loyalty, racial persuasion and racial conformity. These group dynamics increase the chances that the object of the conspiracy will be achieved, and reduce the chances that an individual conspirator will withdraw from the conspiracy.

This article's findings mandate a re-conceptualization of contemporary race-based civil conspiracy law so that corporate actors are held accountable for harnessing the power of collective action to engage in racial discrimination; the rejection of the intracorporate conspiracy doctrine's application to § 1985(3) claims is a critical reform.

Abstract:
In 1987, Charles Lawrence articulated an inherent flaw of the discriminatory intent requirement in equal protection jurisprudence by leveraging social science research to demonstrate that the behavior that produces racial discrimination is influenced by unconscious racial motivation. Twenty years later, the debate continues with increasing social science literature to support his position. Furthermore, other scholars and social scientists have demonstrated how unconscious bias may fuel discriminatory acts against others on the basis of gender, ethnicity and sexual orientation.

Appropriately, most of the unconscious bias research focuses on how such biases operate within the majority to oppress a minority group. They often analyze how white bias serves to stereotype or marginalize people of color or how male bias serves to stereotype or marginalize women. However, rarely does the literature explore how marginalized groups may engage in unconscious (and conscious) bias against one another, which this article argues blocks social justice efforts to combine resources and resource-coalescing coalitions that challenge oppression.

This Article does not seek to explore unconscious bias to conclude that all people in society discriminate, nor to offer some solitude to well-meaning whites (or other members of majority groups) seeking to assuage their guilt. Instead, this Article explores biases within and among subordinated groups in an attempt to offer some clarity on how subordinated groups may build coalitions and uncover how their subordinations are interrelated and dependent upon one another to uphold the power and privilege. This Article turns to social science literature to explore how an appreciation of the operation of unconscious bias among and within subordinated groups, often driven by self-interest and group preservation, presents an opportunity to unify subordinated groups by identifying how such groups interests converge with one another. This Article will briefly use an example to demonstrate how outsider interests may converge by delineating how people of color, women, and LGBTs (and those at the intersections) have a common interest in challenging the legal construction of the concept of family under welfare legislation - legislation that serves to deny life-sustaining benefits to those who fail to conform to what is perceived to be a predominately white, heterosexual, middle-class family construction.

Abstract:
In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify the unspoken past in Parents Involved; challenge the paradigmatic present embodied in its plurality opinion; and then envision the uncreated future. In narrating the unspoken past, Professors Chang and Smith focus on Seattle. They examine the way that segregated neighborhoods and schools were created at the national level and in Seattle. They pay particular attention to the different histories of the different racial groups to show how a segregated Seattle was created and how the Seattle of today, though having a greater level of integration than before, remains a city where Whites are the most racially isolated group, which in turn produces a Seattle with largely segregated schools. In challenging this paradigmatic present, Professors Chang and Smith critique the way that housing choices that produce segregated outcomes is shielded from constitutional scrutiny are labeled as private choice, a characterization that is part of what Calmore criticizes as the neoconservative colorblind constitution. As they envision the uncreated future, Professors Chang and Smith draw from Professor Calmore's work on coalition building in a multiracial, multicultural world. They discuss the challenges that lie in store for people of color and for Whites. For people of color, one challenge is moving beyond the Black-White racial paradigm; for Whites, a primary challenge, one that is often overlooked, is overcoming White racial bonding. They argue that Professor Calmore's methodology - clarifying the unspoken past, critiquing the paradigmatic present, and envisioning the uncreated future - can help us to figure out what must be done to achieve the kind of America that is consistent with its best aspirations, the kind of America that Professor Calmore has worked so hard to achieve.

Abstract:
Drafted during the Reconstruction era to counter white resistance to blacks' civil rights, § 2 of the Ku Klux Klan Act of 1871, now codified as § 1985(3), prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the laws. It is the only federal statute enacted to address race-based civil conspiracies.

A majority of federal courts have emasculated the Ku Klux Klan Act by applying a legal fiction from anti-trust law, the intra-corporate conspiracy doctrine. The intracorporate conspiracy doctrine shields corporations from liability for internal conspiracies. A corporation's employees cannot conspire with each other or with the corporation because the acts of the agents of the corporation are attributed to the corporation itself, making both the agent and corporation one jural person.

This article argues that the federal courts' failure to compare the drastically different objectives of anti-trust law and civil rights law leads to the intra-corporate conspiracy doctrine's application to race-based conspiracies, thereby masking racist actors and casting a cloak over racial discrimination and its resulting harms within corporations.