Tuesday, November 1, 2016
Kimberlé Crenshaw urges us to ask this question. Through her theory of intersectionality, she explains the overwhelming underrepresentation of violence against African-American women in activism, politics and media.
“The problem is, in part, a framing problem,” Crenshaw says. “Without frames that are capacious enough to address all the ways that disadvantages and burdens play out for all members of a particular group, the efforts to mobilize resources to address a social problem will be partial and exclusionary.”
For Crenshaw, this meant developing a language as a method of understanding this problem, she says: “When there’s no name for a problem, you can’t see a problem. When you can’t see a problem, you can’t solve it.”
Tuesday, July 12, 2016
No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity
by Sarah Haley
The University of North Carolina Press, 2016, 360 pp. Link here.
Chained in Silence: Black Women and Convict Labor in the New South
by Talitha L. LeFlouria
The University of North Carolina Press, 2016, 280 pp. Link here.
When you think of convict labor in the postbellum South, you probably think of men. Consider the cultural touchstones: John Henry driving steel in West Virginia, Robert Burns’s I Am a Fugitive from a Georgia Chain Gang!, the manacled singers in Alan Lomax’s field recordings, Nat Adderley’s classic “Work Song” (“Breaking rocks out here on the chain gang/Breaking rocks and serving my time”). Or perhaps not—by far the finest rendition of “Work Song,” after all, is Nina Simone’s. By singing Adderley’s song, Simone made audible what has been systemically silenced: the historical experience of black women subjected to coerced labor and state violence. While the repression and coercion of black women have been constant features of American life in one form or another across the centuries, they are also today the site of a vital strand of political resistance. The appearance of two historical works on the subject, then, is significant. Talitha L. LeFlouria’s Chained in Silence: Black Women and Convict Labor in the New South, and Sarah Haley’s No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity, represent the most thorough historical accounting of the system of carceral labor inflicted on black women.
These are books for our moment. African-American women—queer, black women in particular—have been critical in local organizing against police violence, and have emerged as the leaders of the nation’s most significant national movement for racial justice, Black Lives Matter. Partly, this reflects a long tradition of black female political leadership; partly it is the product of the relative invisibility of state violence against black women.
Wednesday, May 4, 2016
Nicole Negowetti, Implicit Bias and the Legal Profession's "Diversity" Crisis: A Call for Self-Reflection, Nevada L.J. 431 (2015)
Fifty years after federal law prohibited discrimination based on gender and race and ten years after Roderick Palmore issued A Call to Action: Diversity in the Legal Profession, racial and gender disparities persist in the legal profession. A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. While the under representation of minorities is a pervasive problem in the workplace, the legal profession may be the palest profession. In May 2014, The American Lawyer magazine announced that the legal profession is suffering a “Diversity Crisis.” According to Professor Deborah Rhode,
One irony of this nation’s continuing struggle for diversity and gender equity in employment is that the profession leading the struggle has failed to set an example in its own workplaces. In principle, the bar is deeply committed to equal opportunity and social justice. In practice, it lags behind other occupations in leveling the playing field.
Many efforts have been undertaken in response to the Call to Action, such as recruitment at law schools of Historically Black Colleges and Universities and diversity scholarship programs, and many scholars have also proposed institutional reforms to address the law firm practices that disadvantage women and minorities. However, diversity has been elusive. As Brad Smith, General Counsel and Executive Vice President of Microsoft, stated in response to data from the diversity gap findings: “What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.” One reason the diversity efforts have been unsuccessful may be due to a lack of focus on a key reason for the persistent disparities — the “reforms are unlikely to stick until people understand how race actually operates in the brain.”
The goal of this article is to apply social science insights to understand and address the diversity “crisis.” Emerging studies from social science demonstrate that implicit biases play a pivotal role in those “continuing inequities.” Researchers assert that disparate outcomes for different demographic groups not explained by education, experience, qualifications, or work effort are “the most rigorous evidence that substantial bias remains in the American labor market.” Social science studies demonstrate that the continued under representation of women and minorities in the legal profession is unlikely due predominately to explicit or “first generation bias,” which involves “deliberate exclusion or subordination directed at identifiable members of disfavored groups.” Rather, this bias has been supplanted by “second generation” forms of bias, which are attributable to implicit bias.
Thursday, March 10, 2016
Meera Deo (Thomas Jefferson), A Better Tenure Battle: Fighting Bias in Teaching Evaluations, 31 Columbia J. Gender & Law 1 (2015).
This Article draws from the first systematic, comprehensive, mixed-method empirical law faculty diversity study to investigate how challenges in the classroom and bias in teaching evaluations affect female law faculty of color. The in-depth interviews of female law faculty of color are systematically analyzed using Atlas.ti software, finding that students directly challenge particular faculty in class, sometimes through verbal and even physical abuse, and write insensitive and irrelevant race- and gender-based comments on anonymous teaching evaluations. These encounters often have negative effects on the professional trajectory of women of color law professors, most notably when these individuals seek promotion and tenure. Instead of supporting these discriminatory barriers to advancement, legal institutions should do away with student evaluations altogether, modify them, or supplement them with more rigorous and less discriminatory forms of evaluation. This is the way to fight bias in teaching evaluations.
Tuesday, March 1, 2016
Meera Deo, Trajectory of a Law Professor, 20 Mich. J. Race & Law (2015)
Abstract:Women of color are already severely underrepresented in legal academia; as enrollment drops and legal institutions constrict further, race and gender disparities will likely continue to grow. Yet, as many deans and associate deans, most of whom are white, step down from leadership positions during these tumultuous times in legal education, opportunities have arisen for women of color to fill those roles in record numbers. However, there are individual and structural barriers preventing access to the leadership level. Significant hurdles have long prevented women of color from entering law teaching. Thus, this Article provides evidence to support the thesis that ongoing changes in legal education will likely continue to create barriers both to entry and advancement for women of color law faculty members and those who aspire to join legal academia. This Article draws from quantitative and qualitative analyses of data drawn from the Diversity in Legal Academia (DLA) project, a landmark mixed-method study of law faculty diversity, which utilizes an intersectional lens to focus on the experiences of women of color in legal academia while also incorporating those of white men, white women, and men of color. Empirical findings reveal that structural barriers (i.e., outright discrimination) as well as more indirect obstacles prevent women of color from joining legal academia in meaningful numbers and also preclude women of color who are already legal academics from taking on leadership positions. Law school administrators and policy makers should work against these structural and individual barriers to increase and improve faculty diversity at all levels. Greater diversity in legal academia generally, and leadership in particular, will not only provide greater opportunities for particular law faculty members, but will also have a positive effect on law students, legal education, legal academia, and the legal profession overall.
Monday, February 22, 2016
The byline was Eleanor Roosevelt’s, though the headline, apparently, was not. “One of my finest young friends is a charming woman lawyer — Pauli Murray, who has been quite a firebrand at times but of whom I am very fond,” Roosevelt wrote. “She is a lovely person who has struggled and come through very well.” Indeed, nothing was ever easy for Murray, a black woman born in 1910, a woman attracted to women and also a poet, memoirist, lawyer, activist and Episcopal priest. But her tender friendship with Roosevelt, sustained over nearly a quarter-century and more than 300 cards and letters, helped. It is the rich earth Patricia Bell-Scott tills for “The Firebrand and the First Lady,” a tremendous book that has been 20 years in the making.
You could say Pauli Murray was born too soon, and saying so captures the essential injustice of her life, but it would also rob her of credit for making her own time the best she could. “I’m really a submerged writer,” Murray once told her friends, “but the exigencies of the period have driven me into social action.” The granddaughter of a woman born into slavery and a mixed-race Union soldier, Murray was arrested for refusing to sit in the colored section of a bus 15 years before the Montgomery bus boycott and for participating in restaurant sit-ins in the early 1940s, long before the 1960 sit-ins at Woolworth’s lunch counter. She led a national campaign on behalf of a black sharecropper on death row. ***
And Bell-Scott, who was an editor of the important anthology “All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave,” persuasively suggests that Roosevelt’s influence contributed to what would be Murray’s most lasting mark, on women’s rights. “She had spent the first half of her life fighting for equal rights as an African-American, only to discover she would have to spend the second half fighting for equal rights as a woman,” Bell-Scott writes. A brilliant legal strategist, Murray formulated a plan for rendering sex discrimination unconstitutional using the 14th Amendment, co-founded the National Organization for Women and tried her best to build bridges between black and white feminists. In Ruth Bader Ginsburg’s first brief to the Supreme Court, in 1971, she listed Murray as a co-author, though Murray had not worked on it, a nod to the brief’s intellectual ancestry. Ginsburg’s win in that case wrested from the Supreme Court its first ruling against sex discrimination as unconstitutional.
Monday, February 1, 2016
Today’s #GoogleDoodle celebrates abolitionist Frederick Douglass. Douglass was one of the men present at the signing of the women’s rights Declaration of Sentiments in July 1848, and an early supporter of Elizabeth Cady Stanton and the women’s movement, though disagreements between the two over the Fifteenth Amendment emerged later.
Another connection between Stanton and Douglass was her support of his later interracial marriage. Here’s an excerpt from my forthcoming book on Stanton, Tracy A. Thomas, “The Pivot of the Marriage Relation,” chap. 3, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP forthcoming 2016).
For Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.” So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that “there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective ‘white’ it is really remarkable that you or all men should have stooped to do it honor. The ‘white’ feature of this contract is bad enough, but ‘the woman’ is still worse.” Stanton commented on the gender implications of the controversy in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman. Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines. For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage. But this time, she backed down.
 DuBois, “On Labor,” 65.
 ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love Across Color Lines (1999).
 SBA to ECS, Jan. 27, 1884; Newman, 4.
 ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.
Wednesday, January 20, 2016
Tessa L. Dover, Brenda Major, Cheryl R. Kaiser, Diversity Policies Rarely Make Companies Fairer, and They Feel Threatening to White Men, Harv. Bus. Rev.
U.S. companies spend millions annually on diversity programs and policies. Mission statements and recruitment materials touting companies’ commitment to diversity are ubiquitous. And many managers are tasked with the complex goal of “managing diversity” – which can mean anything from ensuring equal employment opportunity compliance, to instituting cultural sensitivity training programs, to focusing on the recruitment and retention of minorities and women.
Are all of these efforts working? In terms of increasing demographic diversity, the answer appears to be not really. The most commonly used diversity programs do little to increase representation of minorities and women. A longitudinal study of over 700 U.S. companies found that implementing diversity training programs has little positive effect and may even decrease representation of black women.
Most people assume that diversity policies make companies fairer for women andminorities, though the data suggest otherwise. Even when there is clear evidence of discrimination at a company, the presence of a diversity policy leads people todiscount claims of unfair treatment. In previous research, we’ve found that this is especially true for members of dominant groups and those who tend to believe that the system is generally fair.
All this has a real effect in court. In a 2011 Supreme Court class action case, Walmart successfully used the mere presence of its anti-discrimination policy to defend itself against allegations of gender discrimination. And Walmart isn’t alone: the “diversity defense” often succeeds, making organizations less accountable for discriminatory practices.
Monday, January 18, 2016
Some classic reading on this MLK Day:
Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chicago Legal. Forum. 139.
bell hooks, Ain't I a Woman: Black Women and Feminism (1987)
Serena Mayeri, Reasoning from Race: Feminist, Law, and the Civil Rights Movement (2014)
Pauli Murray & Mary Eastwood, Jane Crown and the Law: Sex Discrimination and Title VII, 34 GW L. Rev. 232 (1965)
And Serena Mayeri speaking on Pauli Murray and "Jane Crow," Reasoning from Race
Friday, December 11, 2015
Group Challenges AZ Susan B. Anthony-Frederick Douglass Selective Abortion Ban as Discrimination for Perpetuating Stereotypes
This Wednesday, the National Asian Pacific American Women’s Forum (NAPAWF) will challenge Arizona’s ban on so-called race-selective and sex-selective abortions.
NAPAWF along with the Maricopa County Branch of the National Association for the Advancement of Colored People (MC-NAACP) argue the law “targets and stigmatizes Black and Asian American Pacific Islander (AAPI) women and is based entirely on racially motivated stereotypes and generalizations about Black and AAPI women’s reasons for deciding to terminate a pregnancy.”
Lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted.
The case will be heard in the Ninth Circuit Court of Appeals in San Francisco. In 2011, the Arizona legislature passed the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011.”
An earlier court ruling upheld the law on the grounds the NAACP and NAPAWF had no legal grounds to challenge it. The court said, in effect, that if there is no individual claiming that they were personally denied the ability to obtain an abortion, then there is no harm in this case to bring suit. Both groups are challenging that ruling in the Ninth Circuit Court this Wednesday.
” The Arizona law unconstitutionally and unequivocally discriminates against people of color, including Asian Americans,” Miriam Yeung, Executive Director of NAPAWF said to AsAmNews. “Specifically, lawmakers in support of the ban cite high numbers of sex-selective abortions in Asian countries as a primary reason why the ban should be enacted. The Arizona ban was passed based upon racist stereotypes about Asian Americans that have no basis in fact.”
I have written a bit about the Anthony-Douglass Act and the misappropriation of Susan B. Anthony's name for anti-abortion advocacy. See Tracy Thomas Misappropriating Women's History in the Law and Politicis of Abortion, 36 Seattle L. Rev. 1, 8 (2012).
Monday, September 7, 2015
From US News & World Report:
Title VII of the Civil Rights Act of 1964 made it illegal for employers to discriminate against prospective workers based on gender, race or religious preference. But that doesn't mean pay gaps don't exist. An income and poverty report published last year by the U.S. Census Bureau found significant disparities in median household incomes based on race; Asian households brought in $67,065 at the end of 2013, while African-American homes posted $34,598 in annual median income.
Another report from the Economic Policy Institute, drawing in part on Census Bureau data, found that median household incomes for Caucasian male full-time employees hovered around $72,530, significantly higher than African-Americans ($51,610) and Hispanics ($43,240). Female employees' earnings were significantly weaker across the board.
And the Bureau of Labor Statistics estimates women spent more than twice as much time caring for and helping children in the household as men did in 2014.
“Women who have taken some time out of the workforce to do care-giving maybe are not able to come back at the same level. They’ve missed a couple steps on the career ladder,” Robbins says. “Women’s disproportionate representation in the lower paid jobs, and, conversely, their lack of representation in some of the best-paid jobs, really does feed into the wage gap.”
Full-time work more often than not offers greater annual earnings than a part-time job, but a greater percentage of women than men isn't enjoying a standard 40-hour work week. The Labor Department estimates 74 percent of working women were employed full-time in 2013, while 24 percent worked part time. That's compared to 86.9 percent of employed men who work full-time and only 13.1 percent who work part-time.
Saturday, July 18, 2015
And in Waller County, Texas, days before she was scheduled to start a new job at her alma mater, Sandra Bland died in police custody. Officers contend she hung herself, but family and friends suspect foul play — especially since video shows officers slamming her head to the ground three days earlier.
Due in large part to social media, Bland’s death has received a lot of attention since the video of her arrest was circulated. And the FBI has already joined the investigation into her death.
”Prevailing narratives around Black violability and anti-Black racial violence pivot around Black men and boys,” Dr. Treva B. Lindsey, assistant professor of Women’s, Gender, and Sexuality Studies told DAME. “Both historically and contemporarily, when many people working towards racial justice around the issue of racial violence, the presumptive victim is a Black male. From lynching to police brutality, the presumed victim is a Black male. Therefore, Black women and girls are viewed as exceptional victims as opposed to perpetual victims of anti-Black racial violence.”
Monday, July 13, 2015
A bit dated by cyberspace terms but still worth reading from the New Republic:
We cannot talk about the violence that Dylann Roof perpetrated at Emanuel AME last Wednesday night without talking about whiteness, and specifically, about white womanhood and its role in racist violence. We have to talk about those things, because Roof himself did. Per a witness account, we know that he said: “You rape our women and you’re taking over our country.” “Our” women, by whom he meant white women.
There is a centuries-old notion that white men must defend, with lethal violence at times, the sexual purity of white women from allegedly predatory black men. And, as we saw yet again after this shooting, it is not merely a relic of America’s hideous racial past. American racism is always gendered; racism and sexism are mutually dependent, and cannot be unstitched.
Wednesday, July 8, 2015
White Americans make up 95% of elected prosecutors across the US, according to a study that cites the non-indictments of white police officers in the high-profile deaths of unarmed black men as the “shocking” reality of a disproportionate and non-diverse criminal justice system that relies on prosecutorial power.
The study, from the San Francisco-based Women’s Donor Network, also found that that just 17% of elected prosecutors in the US are women – and just 1% are women of color.
The combination of these racial and gender disparities means that white men, who represent 31% of the population, hold 79% of the 2,437 elected prosecutors in the country at a time when growing attention to issues of misrepresentation in the criminal justice system has led to calls for reform.
Wednesday, June 17, 2015
Interesting piece from the Boston Globe:
If we accept that gender is fluid — a reflection of some inexplicable spiritual thing inside of us — why not race? Why do we police the boundaries of blackness more rigorously than we police womanhood?
The general consensus seems to be that as much as we want to do away with racial differences and as deeply as we believe in race as a social construct, we can’t accept Dolezal as a black woman trapped in a spray-tanned blonde’s body.
“Rachel Dolezal . . . may be connected to black communities and feel an affinity with the styles and cultural innovations of black people,” Alicia Walters, a black woman from Spokane wrote in The Guardian. “But the black identity cannot be put on like a pair of shoes.”
But wait a minute. I thought we just agreed that the female identity can be put on like a red mini-dress by Donna Karan. What gives? How can blackness — with all its shades and incredible diversity — be more immutable than manhood itself?
Saturday, May 30, 2015
TOKYO — WHEN Ariana Miyamoto was crowned Miss Universe Japan 2015, participants said she stole the show with a saucy strut, an infectious smile and a calm self-confidence that belied her 21 years. But it was not just her beauty and poise that catapulted her to national attention.
Ms. Miyamoto is one of only a tiny handful of “hafu,” or Japanese of mixed race, to win a major beauty pageant in proudly homogeneousJapan. And she is the first half-black woman ever to do so.
Wednesday, May 20, 2015
An article by Jim Lindgren so argues.
How diverse are tenured and tenure-track law faculties? Which ethnic and gender groups are now the most under- and over-represented in law teaching compared to a very broad measure of the pool: English-fluent, full-time working lawyers of a similar age?
In “Measuring Diversity: Law Faculties in 1997 and 2013,” which can be downloaded from SSRN, I explore tenure-track law school diversity in 1997 and 2013. For the gender and ethnicity of law professors in 2013, I use data released by the ABA, representing the 2013-2014 academic year. For the lawyer population, I use data from the government’s 2011-2013 American Communities Surveys.
This study finds that diversity hiring in law schools has been a great success, at least as to ethnicity and gender. All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly over-represented in law teaching compared to working lawyers. Indeed, the only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.
Saturday, April 11, 2015
April Shaw (Arizona), How Race-Selective and Sex-Selective Bans on Abortion Expose the Color-Coded Dimensions of the Right to Abortion and Deficiencies in Constitutional Protections for Women of Color, NY Review of Law & Social Change (forthcoming)
The Supreme Court’s framework on the right to abortion as articulated in Roe v. Wade and Planned Parenthood v. Casey fails to take into account how race impacts women’s access to abortion. I argue that the race “neutral” framework of Casey’s undue burden test simultaneously erases the racial context of abortion and imposes a conceptual blind spot on how race is used to place a greater burden on women of color relative to white women. Specifically, States are using race to burden women’s access to abortion, but because the right to abortion does not explicitly take race into account, race is not used to measure whether regulations pose a heavier burden on certain groups of women. Applying race as a conceptual lens of analysis is not about inserting race into the legal framework, it is about showing how the current legal framework obscures the impact of race and almost inevitably perpetuates racial stereotypes, disproportionate burdens, and racial inequalities so as to systematically ensure that the right to an abortion as a fundamental right is less secure for women of color.
Thursday, April 9, 2015
From Al Brophy at The Faculty Lounge, Jones on Lynch Nomination
Martha Jones of the University of Michigan's history department and law school has an op-ed at Huffington Post on Loretta Lynch's nomination to be attorney general and the increasing political influence of African American women. Let me use this as an opportunity to mention, as well, the book that Martha has just co-edited, Toward an Intellectual History of Black Women. This obviously builds on Martha's pioneering book on African American women and political ideology in the nineteenth century, All Bound Up Together.
Tuesday, April 7, 2015
At USC School of Law, Reframing the Welfare Queen: Feminist and CRT Alternatives to Existing Poverty Discourse
This year marks the fiftieth anniversary of the Moynihan Report, a Senate report issued in 1965 that pathologized the creation of black, female single-parent households with long- term dependence on state assistance programs, and in this way laid the political foundation for the political construct known as the "welfare queen." The "welfare queen construct" has played a key role in political debates and facilitated the transformation of public assistance programs. For the past fifty years it has played a prominent role in presidential politics, shaping discussions of poverty during the Reagan, Clinton and even Obama presidencies. Moreover, the construct led to a spate of concrete policy changes in 1996, ones that transformed older open-ended welfare programs into TANF (Temporary Assistance for Needy Families). Many TANF features are direct responses to the threat of the welfare queen, including: family caps limiting benefit levels for families above a certain size; workfare programs requiring welfare recipients to work; and strict time limits that sunset welfare benefits after a set number of years.
Numerous scholars, activists and commentators have explored how the welfare queen construct is used to demonize poor women of color in need of state assistance programs. And while the critiques launched by these early conversations about the welfare queen have been important in opening a much-needed dialogue about the needs of the poor, this conference attempts to move us beyond discussions that isolate poor minority female welfare recipients as a special class. Instead the conference explores how the construct of the welfare queen imposes costs on us all, by revealing the hidden institutional norms naturalized by the construct and the cultural anxieties it creates that prevent people from seeking state assistance. Our project is to "reframe" the welfare queen - to challenge the ways in which claims of need are represented as pathological by the state; feminized and racialized in ways that marginalize and render invisible certain needy communities; and foreclose recognition of certain kinds of "need" and certain relationships of support between the individual and the State. By "reframing" the welfare queen have an opportunity to image new forms of governmental assistance that might better match up with the working poor's needs and lived experiences and with feminist values and anti-poverty advocates' goals and understandings.