Thursday, February 8, 2018
Jessica Watters, Pink Hats and Black Fists: The Role of Women in Black Lives Matter, 24 William & Mary J. Women & Law 199 (2017)
On January 21, 2017, nearly five hundred thousand people, many cadorned in pink, cat-eared “pussyhats,” descended on Washington, D.C.—the flagship location for the official “Women’s March.” In total, 673 “sister” marches took place across the seven continents, including Antarctica. An estimated five million people participated worldwide, and the March was the largest single-day protest in United States history.
One photo from the March belies the purported unity. In that photo, Angela Peoples, a Black woman, stands unbothered in a crowd of smiling White women wearing pink “pussyhats.” Ms. Peoples’ cap reads “Stop Killing Black People;” her sign says “Don’t forget: White women voted for Trump.” . . . The picture vividly demonstrates the dissonance between America’s mainstream feminist and civil rights movements, a juxtaposition further illuminated by the success of the Women’s March.
This divide has a long history, and there is a wealth of scholarship examining how race shapes women’s experiences and discussing the importance of intersectional feminism. Feminism has historically been White-centered, while civil rights discourse largely pertains to men of color. The theories of “intersectionality” and Critical Race Feminism arose as a response to this discordance. These theories offer a critical perspective of the interplay of race, gender, and class for women of color in a patriarchal, racist system. For modern feminism to survive, it must adapt to include the significant group of people who are presently excluded by “White feminism”— those who are both women and members of racial and ethnic minorities, as well as those who are economically disadvantaged; it must fully embrace intersectionality.
This Comment does not offer a new justification of the importance of intersectional feminism, nor does it aim to highlight the shortcomings of the Women’s March. Instead, it uses the Women’s March as a case study to highlight the role of women in protest, and more specifically, the importance of White women’s future participation in intersectional movements.
Holly McCammon, Brittany N. Hearne, Allison R. McGrath, Minyoung Moon, Legal Mobilization and Analogical Framing: Feminist Litigators' Use of Race-Gender Analogies, 40 Law & Policy 57 (2018).
From the Introduction:
In an effort to contribute to our understanding of social movement judicial legal mobilization, our paper explores legal briefs submitted to the US Supreme Court in gender-equality cases since 1970. We focus particularly on the use of a specific type of legal framing in these briefs: analogical legal framing. As Sunstein (1993) points out, this is a commonly used form of reasoning in litigation, and some (Mayeri 2001; Rush 1997) argue that it is a dominant form, particularly in civil rights litigation. In analogical legal framing, a litigant argues that similarities exist, for instance, between two groups, and developments in law regarding one group should be considered in adjudication concerning the other group (Mayeri 2001; Sunstein 1993).2 Here we specifically investigate feminist litigators' use of race–gender analogies in their cause lawyering. Feminist cause lawyers have pursued a substantial number of cases before the high court over the last several decades in an effort to achieve greater gender equality under the law. In such cases, with some frequency, the feminist party to the case (that is, the party seeking greater gender equality) draws an analogy between racial and gender discrimination as they argue in favor of broadening gender equality. In fact, MacKinnon (1991, 1281) goes so far as to state that “the judicial interpretation of sex equality … has been built on the racial analogy.” Mayeri (2011, 3), who examines in rich detail “reasoning from race,” states that “‘second-wave’ feminists conscripted legal strategies developed to combat race discrimination into the service of women's rights.”
Various scholars explore whether and how movement activists invoke the law generally (e.g., Pedriana 2006; Andersen 2005; McCann 1994), yet few examine how cause lawyers articulate their demands in court. Our investigation contributes to the larger literature on legal mobilization by taking a number of steps. First, we explore the use of analogical legal framing by activists, a type of litigation reasoning commonly used but not yet investigated as a form of movement framing. We examine the frequency and trends in the use of such arguments in feminist briefs presented to the Supreme Court in gender-equality cases from 1970 to the present. In addition, we provide insight into the various forms the race–gender analogy takes. Second, we consider how social movement framing concepts, such as frame bridging and transformation (Snow et al. 1986), can be understood in combination with analogical legal framing.
Finally, our research also contributes to the understanding of why activists choose to deploy particular types of frames. A handful of scholars have investigated the circumstances shaping why movements articulate certain types of frames (e.g., McCammon 2012; Coe 2011; Maney, Woehrle, and Coy 2005), but few have considered the circumstances leading to the use of specific frames in movement litigation (for exceptions, see Goldberg 2014; Fuchs 2013; Ziegler 2011). Our investigation of analogic framing by feminist legal activists will enrich our understanding not only of movement framing but also (in particular) of framing as practiced by activists engaged in legal mobilization. By examining why shifts in the overall use and in the varying types of the analogic frame occur, our research furthers understanding of this particular form of legal mobilization strategy.
Tuesday, February 6, 2018
D. Wendy Greene, Splitting Hairs: The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair in EEOC v. Catastrophe, 71 Miami L. Rev. (2017)
What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair has much to do with their ability to obtain and maintain employment as well as their enjoyment of dignity, equality, and agency in contemporary workplaces. When Black women wear natural hairstyles like afros, locks, twists, braids, they are often subjected to harassment, demotions, discipline, termination and denial of employment for which they are qualified. However, when Black women have challenged natural hairstyle bans as race discrimination violative of federal laws like Title VII of the 1964 Civil Rights Act, federal courts have issued hair splitting decisions that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Thus, generally, Black women subjected to discrimination because of their natural hair lack any form of legal redress. The 11th Circuit Court of Appeals recent decision in EEOC v. Catastrophe Management Solutions (2016) preserved this status quo by holding that an employer’s revocation of a job offer to an African American woman for refusing to cut off her dreadlocks did not violate Title VII because locks are not an “immutable” racial characteristic of African descendants presumably like an afro.
Professor Greene explains that federal courts’ strict application of this “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law that triggers troubling, tangible consequences in the lives of Black women. Indeed, natural hairstyle bans effectively require Black women to wear straightened hairstyles, which Black women often achieve through costly, time-consuming, and physically damaging procedures like weaves, wigs, hair extensions, chemical relaxers and/or the application of extreme heat to their hair. Thus, workplace bans against natural hair are not a superficial matter; they can negatively impact Black women's physical, economic, and emotional well being. Moreover, Professor Greene argues that the 11th Circuit's recent dismissal of the EEOC’s case, which affirms the legality of straight hair mandates imposed upon Black women, exacerbates the “hyper-regulation of Black women’s bodies via their hair” in the 21st century workplace.
Tuesday, January 9, 2018
Brittney Cooper (professor, Women and Africana Studies,Rutgers University), Eloquent Rage: A Black Feminist Discovers her Superpower
A professor explores the ways “sexism, and racism, and classism work together to fuck shit up for everybody” and how feminism can begin undoing the damage.
“We [black women] are told we are irrational, crazy, out of touch, entitled, disruptive and not team players,” writes Cooper (Women and Gender Studies, Africana Studies/Rutgers Univ.). But as her feminist foremother Audre Lorde once remarked, this anger was not only legitimate; it was also “a powerful source of energy serving progress and change.” Here, Cooper brings together essays tracing her evolution as a feminist while giving voice to the political (out)rage seething within. The author begins by detailing the difficult journey that led her to “disidentify with [the] whiteness” of mainstream feminism and learn to embrace her “particular Black girl magic.” Her quest for political authenticity meant fighting with white women over racism and black men over sexism. Participating in these separate battles did not blind her to the need for alliances with both groups, however; they only made her more aware of the need for creating solidarity across communities to topple patriarchy. Cooper’s feminist journey also forced her to shed cultural “baggage”—such as the racism of a white society that questioned her movements on American streets and the sexism of black society that sought to control her sexuality through the church—that limited her passage through the world. Once uncovered and focused, however, the rage that inevitably comes from such injustices is of tremendous benefit to all. Cooper points to tennis star Serena Williams, former first lady Michelle Obama, and singer Beyoncé as contemporary black feminist role models. By learning how to channel their rage in their areas of endeavor, they have earned game-changing respect that has transcended race and gender. Sharp and always humane, Cooper’s book suggests important ways in which feminism needs to evolve for the betterment not just of black women, but society as a whole.
A timely and provocative book that shows “what you build is infinitely more important than what you tear down.”
Monday, November 27, 2017
Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge
Symposium in the recent issue of the Columbia Law Review.
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley
Judge Denny Chin & Kathy Hirata Chin, Constance Baker Motley, James Meredith, and the University of Mississippi
Judge George B. Daniels* & Rachel Pereira, Equal Protection as a Vehicle for Equal Access and Opportunity: Constance Baker Motley and the Fourteenth Amendment in Education Cases
Judge Raymond J. Lohier, Jr., On Judge Motley and the Second Circuit
Friday, November 17, 2017
Taja-Nia Y. Henderson, "I Shall Talk to My Own People": The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017).
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments—her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school—have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
As a genre, biography seeks to use the life of the individual to tell a larger story about the collective. Feminist biography—probably best understood as both subgenre and method—has the same goals, but moves gender “to the center of the analysis.” This methodology asks not only how gender as a social category has impacted the lives of historical actors, but also how the unequal distribution of power resulting from existing gender hierarchies has influenced epistemologies of scholarly inquiry.
A biographical sketch of Lutie A. Lytle, a woman coming of age in the second half of the nineteenth century, warrants such treatment. Lytle’s career in the law was certainly impacted by gender as she was among the earliest cadre of women lawyers in the nation. As a student, she was the only woman enrolled in the Law Department of Central Tennessee College. When she was appointed as an instructor at the College, moreover, she was the only woman among the law school’s faculty. As a woman of African descent born during Reconstruction, however, Lytle (and her story) “cannot be captured wholly by” a methodology that moves only gender to the center. The intersection (or overlap) of Lytle’s identities as a woman of color and the daughter of former slaves requires that gender and race (and arguably, status and class) move to the center. In other words, a biographical sketch of Lytle’s life cannot privilege gender in isolation; it must also grapple with the persistence of race, racism, and the myriad legacies of chattel slavery in the subject’s world.
Friday, September 22, 2017
Recent popular and scholarly interest has highlighted the complex and brutal system of mass incarceration in the United States. Much of this interest has focused on recent developments while other scholars have revealed the connections between the development of the prison system after Reconstruction and the legacies of slavery. In her new book, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press, 2016), Sarah Haley points to an often under recognized part of this history. Haley, an associate professor of gender studies and African American Studies at the University of California, Los Angeles, focuses on the Southern criminal justice system’s treatment and exploitation of black women during the Jim Crow era. Though black women were caught up in the criminal justice system in smaller numbers than men were, Haley shows their treatment was very important to the development of Jim Crow modernity. The brutal and violent treatment, the ideological narratives surrounding black women, and the exploitation of their labor were all key in creating the ideologies of racial capitalism and patriarchy. Haley also discusses the ways black women resisted this treatment and contented the related ideologies.
In this episode of New Books in History, Haley discusses No Mercy Here and this history of gender, criminal justice, and race.
Tuesday, September 19, 2017
Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.
This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Wednesday, August 30, 2017
New Books Network, Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray (Oxford 2017)
Rosalind Rosenberg‘s book Jane Crow: The Life of Pauli Murray (Oxford University Press, 2017) is a multi-layered and rich biography of Pauli Murray, an activist, lawyer and Episcopal priest whose life intersected with the most significant civil and human rights issues of the twentieth century. As a mixed raced woman who felt that her identity was at odds with her body before transsexual had become part of the popular consciousness, Murray’s life provides insight into a lived intersectionality of race, class, gender, and sexuality. Beginning with her southern upbringing, we follow Murray through multiple educational, vocational and identity challenges she suffered. In a journey through a dislocated life, she contributed to multiple movements and institutions working with many key social leaders such as Thurgood Marshall, Eleanor Roosevelt and Betty Friedan. Appearing as a one-person social movement with a deep religious faith she pursued justice not only for herself but also for others. Rosenberg has provided sympathetic insight into the personal cost that Murray incurred on the road to a more equitable society. Rosalind Rosenberg is Professor of History Emerita at Barnard College.
Friday, May 12, 2017
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.
Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.
Tuesday, January 24, 2017
Study Concludes Law Fails to Grasp the Reality of Workplace Discrimination and Condones Gender Inequality
Laura Edelman, Aaron Smyth, Asad Rahim, Legal Discrimination:Empirical Sociolegal and Critical Race Perspectives on AntiDiscrimination Law, 12 Annual Rev. Law & Social Science 395 (2016)
Abstract:The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions.In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.
Monday, January 16, 2017
A few years ago, I wrote an essay Sex v. Race, Again later included in the book Who Should Be First? Feminists Speak Out on the 2008 Presidential Campaign. The book was about the perceived battle between race and sex seen in the political campaign between Hillary Clinton and Barack Obama for the Democratic presidential nomination.
The essay connected that presidential context to the historic context of the battle for suffrage rights and how race and sex were set against each other. It showed how historically in law, we have spent time arguing "which is worse," discrimination on the basis of race or gender.
On this MLK Day of reflection on race, and as the March for Women's Rights is planned -- attracting criticism for being both too little and too much about race -- it may be useful to revisit one small piece of this history.
Sex v. Race, Again
The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-Americanpresident resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.
In the late nineteenth century, the debate over the constitutional right to vote became a clash of race versus sex. Women’s rights leaders, most notably Elizabeth Cady Stanton and Susan B. Anthony, battled black men for the right to vote. Rather than unifying against the shared concern of the white male monopolization of political power and legal rights, the representatives of the disenfranchised classes fought each other to obtain rights first.
It began with the Fourteenth Amendment to the U.S. Constitution, ratified in 1868, which precluded the rights of women voters by expressly penalizing states that improperly excluded male citizens from voting.2 This subordination of women’s rights continued in the debate over the Fifteenth Amendment when civil rights leaders abandoned the universal suffrage platform of voting rights for all citizens, temporarily advanced in 1866 by the combined forces of feminists and abolitionists, in favor of prioritized rights for black men. Frederick Douglass, previously one of the staunchest supporters of women’s suffrage, rejected the women’s issues as less urgent and asserted that the failure to grant strategic priority to black male suffrage was a major betrayal of the former slave and constituted outright racism.3 Douglass insisted:
I must say I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and death, at least, in fifteen States of the Union When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of outrage and insult at every turn; . . . then they will have an urgency to obtain the ballot equal to our own.
Douglass acknowledged that the same persecution was true for a black woman, “but not because she is a woman, but because she is
Stanton had earlier taken up the cause of black women when abolitionists began narrowing their focus on the rights of black men: “May I ask just one question based upon the apparent opposition in which you place the negro and the woman? Do you believe the African race is composed entirely of males?” The women’s rights leaders tried to highlight the plight of black women to expose the erroneous opposition of race and gender. A similar point was made one hundred years later by author and black activist bell hooks, who argued that the forced opposition between black power and women’s liberation ignored the reality of black women and unfairly narrowed the social and political debate.
Women in the nineteenth century lost the battle for universal suffrage, and were told that it was the “Negro’s hour” and that they must wait patiently for their time to come (which would be fifty years later). Some women’s rights leaders, like Lucy Stone, eventually acquiesced, and split from the nationalorganization for women’s rights. Others, like Stanton, refused to support a law that discriminated against women and granted preferential power to black men. As Phoebe Couzins, a law student and associate of Stanton’s proclaimed, “I repudiate the Fifteenth Amendment, because it asks me to acquiesce in an assertion to which I utterly refuse to assent, i.e., the inferiority of women.”
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.