Tuesday, October 13, 2020
Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color
CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)
Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.
Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital.,
Friday, October 2, 2020
New Book Podcast: Michele Goodwin's Policing the Womb: Invisible Women and the Criminalization of Motherhood
Michelle Goodwin, Podcast, New Books in Law: Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge Press 2020)
Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020) a brilliant but shocking account of the criminalization of all aspects of reproduction, pregnancy, abortion, birth, and motherhood in the United States. In her extensively researched monograph, Michele Goodwin recounts the horrific contemporary situation, which includes, for example, mothers giving birth shackled in leg irons, in solitary confinement, even in prison toilets, and in some states, women being coerced by the State into sterilization, in exchange for reduced sentences. She contextualises the modern day situation in America’s history of slavery and oppression, and also in relation to its place in the world. Goodwin shows how prosecutors abuse laws, and medical professionals are complicit in a system that disproportionally impacts the poor and women of color. However, Goodwin warns that these women are just the canaries in the coalmine. In the context of both the Black Lives Matter movement, and in the lead up to the 2020 Presidential election, her book could not be more timely; Not only is the United States the deadliest country in the developed world for pregnant women, but the severe lack of protections for reproductive rights and motherhood is compounding racial and indigent disparities.
Monday, September 28, 2020
Executive Order Against Training Federal Employees, Contractors and Military on Racism Applies to Sexism Too
Executive Order on Combating Race and Sex Stereotyping, White House (Sept. 22, 2020)
This executive order is an expression not only of white fragility, but also of male fragility. It reads as a defense of the oppressors. It embodies defensiveness in the face of illustrations of racial and gender privilege, while it reacts to perceived affronts to white men's moral character. While titled as an order about "stereotyping," it is most concerned with what the order calls "race and sex scapegoating."
The prohibitions on addressing racism in federal employment training and contractors have been mentioned in the media and challenged by scholars.
Less discussed have been the provisions that also prevent teaching about sexism. The Order prohibits federal workplaces, unions, military, and federal contractors from teaching about such "divisive concepts" as sexism, male privilege, or systemic sexism.
It decries "sex scapegoating," defined as: "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."
The order provides an example of a training of concern: "Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other."
Melanie Wilson, A Reckoning Over Law Faculty Inequality, 98 Denver L.Rev. (2020)
In this review, I examine Dr. Meera E. Deo’s book, Unequal Profession: Race and Gender in Legal Academia, published last year by Stanford University Press. In Unequal Profession, Deo, an expert on institutional diversity, presents findings from a first-of-its-kind empirical study, documenting many of the challenges women of color law faculty confront daily in legal academia. Deo uses memorable quotes and powerful stories from the study’s faculty participants to present her important work in 169 readable and revealing pages. Unequal Profession begins by outlining the barriers women of color face when entering law teaching and progresses through the life cycle of the law professor (including the treacherous tenure process). It covers leadership, before concluding with work-life balance.
Unequal Profession is especially timely and important. In the wake of George Floyd’s death and the national outrage it ignited, law schools denounced racism and vowed to take concrete, anti-racist steps to improve society, the legal profession, and law schools themselves. Many law faculties committed to hiring and retaining more underrepresented faculty colleagues and, correspondingly, to attracting a more diverse student body. If law schools are serious about changing, then they should read Unequal Profession. As this review demonstrates, Unequal Profession is a definitive resource for improving inequality in legal education.
Friday, September 25, 2020
Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter
The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm
This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.
Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.
The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.
Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.
Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at email@example.com by December 1. Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.
Wednesday, August 26, 2020
My own work
Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)
Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)
Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)
Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)
Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)
Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)
Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920
Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)
Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)
Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)
Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)
Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)
Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)
Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev. 1456 (2001
Angela Dodson, Why Women's Suffrage Matters for Black People
While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.
As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.
As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.
To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.
As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.
Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.
Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920
Monday, August 17, 2020
NY Times Special Issue on Women's Suffrage and the 19th Amendment Challenges Myths and Offers More Inclusive Version of the Legal History
The NY Times features this special section on women's suffrage on the 100th Anniversary of Women's Suffrage:
Historians who specialize in voting rights and African-American women’s history have played a welcome and unusually public role in combating the myths that have long surrounded the women’s suffrage movement and the 19th Amendment, which celebrates its 100th anniversary on Tuesday.
In the lead-up to this centennial, these same campaigning historians have warned against celebrations and proposed monuments to the suffrage movement that seemed destined to render invisible the contributions of African-American women like Frances Ellen Watkins Harper, Mary Church Terrell, Sojourner Truth and Ida B. Wells — all of whom played heroic roles in the late 19th- and early 20th-century struggles for women’s rights and universal human rights. In addition to speaking up for Black women of the past, these scholars have performed a vital public service by debunking the most pernicious falsehood about the 19th Amendment: that it concluded a century-long battle for equality by guaranteeing women the right to vote.
Americans who imbibed this fiction in civics classes are caught off guard when they hear the more complicated truth — that millions of women had won voting rights before the 19th Amendment was ratified, and millions more remained shut out of the polls after ratification. Indeed, as middle-class white women celebrated ratification by parading through the streets, African-American women in the Jim Crow South who had worked diligently for women’s rights found themselves shut out of the ballot box for another half century — and abandoned by white suffragists who declared their mission accomplished the moment middle-class white women achieved the franchise.
As the distinguished historian Nancy Hewitt has shown, a lengthy campaign and a range of subsequent laws was required to fully open ballot access to others, including Black women, Mexican-Americans, Native Americans, Chinese-Americans and Korean-Americans. Among those necessary laws were the repeal of the Chinese Exclusion Act in 1943 and the adoption of the Immigration and Nationality Act of 1952, the 24th Amendment in 1964 and the Voting Rights Act in 1965, along with its amendments of 1970 and 1975. In other words, the 19th Amendment was one step in a long, racially fraught battle for voting rights that seemed secure a few decades ago but face a grave threat today.
Maya Salam, How Queer Women Powered the Suffrage Movement
Martha Jones, Tackling a Century-Old Mystery: Did my Grandmother Vote?
Sarah Elizabeth Lewis, For Black Suffragists, the Lens Was a Mighty Sword
Cathleen Cahill & Sarah Deer, In 1920, Native Women Sought the Vote: Here's What was Next
Thursday, July 23, 2020
A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including police officers, prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have left Black girls unprotected for centuries.
Tuesday, July 14, 2020
In response to widespread demands to “defund the police,” a specific question repeatedly crops up: “What about domestic and sexual violence?” These “what about” questions imply that defunding, reducing, and reforming the aggressive street policing currently under public scrutiny will leave people without vital protection and trigger a tidal wave of crime.
As prominent prison abolitionist Mariame Kaba has explained, the police have never been the solution to violence against women. Few women actually report rapes to police, and when they do, officers disbelieve and mistreat them. Kaba and others point out that police officers frequently commit domestic and sexual violence themselves, often using their authority to get away with it.
Still, some argue that this reality calls for more policing. Laws and policies could require officers to believe women and make arrests in their cases. This may, in turn, increase reporting and victim satisfaction. Some policies like this already exist in the form of special victims units where officers are trained to be victim-centered and trauma-informed and to pursue cases to arrest. One letter to the editor responding to Kaba suggested that we could change the face of policing: “I disagree that we should abolish the police. Instead, we should simply replace male policemen with more women.”
It is tempting to see aggressive rape and domestic violence policing as the solution to violence against women, especially as the coronavirus lockdown is increasing such violence. But we have been down that road before, and it just led to more harm for marginalized people, including women.
Beginning in the late 1970s, battered women’s activists launched a remarkably successful campaign for states and police departments to adopt laws and policies that encouraged, even required, police officers to arrest in domestic violence cases. Before the policies, officers who responded to “domestic disputes” often did not arrest, instead choosing to mediate between the parties or temporarily remove the suspect from the scene. Department policies even encouraged police not to arrest.
In the early days of the movement, many feminists also rejected strict law enforcement. Black activists within the movement vociferously opposed increasing police presence in the lives of people of color. Social scientists warned that arrest “initiates a judicial process which, experience tells us, has little chance of a productive outcome,” as researcher Morton Bard observed.
Consequently, much of the early battered women’s movement was oriented not around policing but around services like helping women obtain housing, employment, and public benefits
Massachusetts Historical Society, “Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of Their Ratifications
“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 12-16, 2020
Registration opens in August!
As a result of ongoing public health concerns, the Massachusetts Historical Society has altered its original plan for an in-person conference in October 2020. Rather than meeting for two days of sessions, we will host the conference panels online between Monday, 12 October and Friday, 16 October 2020. The originally scheduled keynote panel will be postponed until it is safe to hold the event in person at the MHS.
The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.
At a later date, a keynote panel will feature feature Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard).
Monday, July 6, 2020
Kia Hall, A Transnational Black Feminist Framework: Rooting in Feminist Scholarship, Framing Contemporary Black Activism, 15 Meridians 86 (2016) [pay wall]
What is the role of feminist scholar-activists in contemporary Black freedom movements such as Black Lives Matter? This article proposes a Transnational Black Feminist framework as a theoretical complement to grassroots activism in Black communities. The proposed framework is rooted in Black feminist and transnational feminist traditions, and has as its core the guiding principles of intersectionality, scholar-activism, solidarity building, and attention to borders and boundaries.
Wednesday, June 10, 2020
Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)
As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.
In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.
Thursday, June 4, 2020
To browse the posts on race and gender here on the Gender & Law Prof Blog, click here. (Or go to the home blog page, categories, and select "Race")
Recent posts include research on theory like intersectionality and hood feminism; gender, race, and crime; pay gaps for black women; inequality for black women, black women lawyers, and black women academics; black women in the #MeToo and suffrage movements; and many others.
Constance Wagner, In Search of Best Practices on Gender Equity for University Faculty: An Update"
Norman Shachoy Symposium at Villanova Law School, 2019
This article updates the author’s earlier work on the search for gender equity among women faculty in the university setting in the United States. The author reflects on the fact that some of the literature in this area does not sufficiently address the challenges facing women of color. She seeks to fill the gap in her own research by referencing best practices discussed in three recent books on the professional lives of university faculty who are women of color. She argues that future work on best practices for achieving gender equity must address issues of intersectionality of race, gender, and class in order to develop effective tools for change in the university setting. This article was prepared for the 2019 Norman Shachoy Symposium at Villanova Law School, which focused on “Gender Equity in Law Schools”.
Tuesday, May 26, 2020
New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia
The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.
Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young
For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia
LaCrisha McAllister, "Quarters in the Court: How the Gender Pay Gap Affects Black Women in Law"
Women constitute almost half of the national workforce. For half of American families, they are the sole source of income or they are a co-breadwinner. They earn more degrees than men. They work in a broad spectrum of professions and industries and they serve in a multitude of capacities, from administrators to upper management to laborers and everything between. Despite these things, women are paid significantly less than their male counterparts. Efforts to address this have been fodder for discussion for some time. Currently, less than 1% of elected prosecutors are Black women, less than 8% of judges are Black Women in State Trial Courts and State Appellate courts respectively, and a report from the National Association for Law Placement found that Black Women make up about 1.73% of all attorneys included in their survey. This paper seeks to address the ways that the Gender Pay Gap affects Black women in the legal field and how the legal profession can place equity in pay at the base of its mission.
Tuesday, May 5, 2020
Emma Decourcy, The Injustice of Formal Gender Equality in Sentencing, 47 Fordham Urb. L.J. 395 (2020)
Over the past 40 years, the entire United States penal population has grown at an unprecedented rate, and the rate of female incarceration is growing at twice the rate of men. Given that there does not appear to be an increase in female criminality that corresponds with the increase in female incarceration, it may be inferred that the rising rate of female imprisonment is the result of changes in criminal justice law and policy that prescribe simplistic, punitive enforcement responses to complex social problems.
While criminological research has paid increased attention to women and girls over the past decade, there is still much work left to be done. This Note aims to address a perceived gap in existing scholarship on female incarceration — existing research and proposed solutions have tended to focus on prison conditions and post-incarceration re-entry. While such work is imperative, an examination of the female pathways to incarceration is equally important. This Note argues reforms that target the front end of the incarceration process, namely sentencing, should be employed to address the rapidly rising rate of female incarceration.
Part I of this Note first provides a brief overview of the mass incarceration crisis in America and the changes in criminal justice policy, namely sentencing policy, to which it is attributed. Part I then discusses the impact of changes in sentencing policy on female sentencing outcomes. Part II proposes a framework of inquiry to be used by policymakers engaged in the creation of gender-responsive sentencing policies. This framework includes an analysis of the scope and nature of female incarceration, the correlates of female criminality, and the impact of existing gender-neutral policies on women involved in the criminal justice system. Finally, Part III discusses the efficacy of gender-neutral sentencing policies in action and identifies two policies that exemplify proper application of the framework presented in Part II.
Thursday, April 30, 2020
Mary Crossley, Reproducing Dignity: Race, Disability, and Reproductive Controls, UC Davis L. Rev. (forthcoming)
Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage their childbearing. Their ability to pursue motherhood is diminished by disproportionately high rates of institutionalization (either treatment-related or carceral) and low rates of access to assisted reproduction. Becoming pregnant is riskier, with risks flowing from medical ignorance regarding maternity care (for disabled women) or high rates of maternal mortality and criminal prosecutions (for Black women). Finally, if they become mothers, Black and disabled women are more likely to lose custody of their children to the state.
This Article argues that barriers to bearing children and forming families debase the dignity of Black and disabled women in meaningfully similar ways. In so doing, it points to an opportunity. Recognizing similarities (while appreciating differences) may equip participants in social movements – whether racial justice advocates, disability justice proponents, or reproductive justice activists – to build stronger coalitions to advance the dignity of reproductive choices for all women.
Friday, April 17, 2020
Institutional Perpetuation of Systemic Gender and Racial Discrimination by the Continued Use of Student Evaluations Despite Research Consensus on their Bias
Debra Austin, Leadership Lapse: Laundering Systemic Bias through Student Evaluations, Villanova L. Rev. (forthcoming)
The use of the student evaluation of teaching (SET) for high stakes faculty employment decisions amounts to a lapse in leadership. A scholarly consensus has emerged that using SETs as the primary measure of teaching effectiveness in faculty review processes can systematically disadvantage faculty from marginalized groups. The growing body of evidence shows that women and minorities get lower ratings of their teaching than white men. Using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.
Despite the knowledge that empirical research demonstrates these instruments are biased, the academy has accepted them as credible. Bias in student evaluations can lead an institution to determine that a faculty member who differs from the straight white male stereotype is an inadequate teacher. Faculty with lower student ratings are penalized in the hiring, retention, compensation, and promotion processes.
This article summarizes empirical research demonstrating that student evaluations are biased against female faculty and faculty of color; describes the impact on student learning; details the influence on institutional culture of using student evaluations for assessing teaching quality for performance evaluations, compensation, promotion, and retention; and suggests recommendations for evaluating teaching effectiveness in fair and responsible ways. Law schools should lead the change in this discriminatory higher education practice because they are institutions dedicated to social justice and to training leaders who will drive social change in the legal system, government, business, media, and philanthropy.