Thursday, October 21, 2021
Study Shows Restricting Prosecutorial Discretion on Racial and Gender Disparities Reduced Gender Gap of Men Being More Likely than Women to Receive Sentence Enhancements
Andy Yuan & Spencer Cooper, Racial, Gender Disparities and Prosecutorial Discretion: Evidence from Blakely v. Washington
We investigate the causal effects of restricting prosecutorial discretion on racial and gender disparities. Blakely v.Washington 542 U.S.296 (2004) exogenously introduced a significant constraint on North Carolina state prosecutors' discretion in seeking sentence enhancements by raising their burdens of proof from "preponderance of evidence" to "beyond a reasonable doubt." Through a regression discontinuity design, we find striking evidence that restricting prosecutorial discretion eliminated the entire preexisting gender gap of men being 28% more likely to receive sentence enhancements than women. However, we find no evidence suggesting a racial gap of sentence enhancements both pre and post Blakely.
Monday, October 18, 2021
The World Health Organization honored Henrietta Lacks this month.
Henrietta Lacks, a Black American woman and a young mother, died from cervical cancer on October 4, 1951—just eight months after her cancer diagnosis. She was 31 years old. Although her life was cut short, her legacy lives on through an “immortal” line of cells, known as HeLa cells.
During her treatment, researchers took samples of Mrs. Lacks’ tumour without her knowledge or consent. For two decades, Mrs. Lacks’ cells were commercialized and distributed across the globe unknown to her family.
Contributing to nearly 75 000 studies, Henrietta Lacks' cells have paved the way for advancements from HPV and polio vaccines to medications for HIV/AIDS and breakthroughs including in vitro fertilization. In addition, HeLa cells are currently used in vital research for COVID-19 response efforts. * * *
In recognizing Henrietta Lacks’ enduring legacy, WHO acknowledges her story—one of inequity—and looks forward to collectively rectifying unjust disparities in global health.
The story of Henrietta Lacks is featured in many law casebooks and her story is an important lens into the intersections of race and gender in informed consent. Readers might accordingly be interested in this recognition.
Wednesday, October 13, 2021
Ann Tweedy, Book Review, Uncovering the Little-Known History of Suffragists of Color, JOTWELL, reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)
It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).
Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.
Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.
Tuesday, October 12, 2021
By: Meera Deo
Published in: Rutgers Law Review, Vol. 73, No. 3, 2021
This Essay initiates the Rutgers Law Review symposium, "Taking Our Space: Women of Color and Antiracism in Legal Academia," a collection of essays inspired by my book, Unequal Profession: Race and Gender in Legal Academia (Stanford University Press, 2019). After briefly tracing the origins of the book project, I focus on five themes that outline responses as well as updates to Unequal Profession: (1) claiming my worth; (2) jumping on the bandwagon; (3) centering structural solutions; (4) being part of the solution—not the solution; and (5) understanding pandemic effects on legal academia. Together, these themes reveal the depth and difficulty of the work that the legal academy must take on in order to move our profession closer to equity.
The five themes presented here are insights I have gleaned along the way since Unequal Profession was published. Just as a qualitative researcher draws out patterns and observations from the data, I have performed some preliminary analyses on two-plus years’ worth of responses to Unequal Profession, as well as crafted a brief update on how various events of this past unfathomable year exacerbate raceXgender biases in legal academia. I share these observations so that aspiring authors, current academics, allies in practice, and administrative leaders can work together with me to craft a more equal profession. As the five themes outlined here demonstrate, achieving a more equal profession involves working not only to address naysayers, whose implicit and explicit biases may reinforce inequities, but also for each one of us to critically reflect on our own individual prejudices and opportunities for improvement.
Monday, October 4, 2021
A class of Black female police officers in Washington, D.C. has sued the Metropolitan Police Department (MPD) alleging an "enterprise-wide culture of race and sex discrimination and intense pervasive retaliation against those who dared to complaint about, report, or oppose unlawful discrimination." Every woman in the class has worked for MPD for years and has previously complained multiple times about race and sex discrimination. The complaint alleges that:
There are four fundamental characteristics of the MPD that this class action lawsuit seeks to change: 1) MPD has a male-dominated culture that accepts and perpetuates the most demeaning, degrading and disrespectful discourse and actions by and between officers; 2) MPD has a culture that nurtures and encourages supervisory and management officers to abuse their power to exact petty vengeance on subordinates and make their lives miserable; 3) MPD has a profoundly dysfunctional and corrupt EEO Office run by a man who has repeatedly expressed hostility to women officers, and who colludes with management to crush Black women who complain about race and gender discrimination and sexual harassment; and 4) MPD, with the full participation and/or approval of the Chiefs of Police, engages in repeated, coordinated and relentless retaliation campaigns against Black women officers who complain about or oppose discrimination, or other police misconduct. In combination, these four MPD characteristics create a profoundly toxic work environment for Black woman officers.
The 209-page complaint chronicles extensively the allegations against MPD and MPD's retaliatory responses. The plaintiffs seek compensatory damages, health care related to physical and emotional harms, reinstatement of terminated or retired officers, applicable back pay, revised performance records, reimbursement for leave associated with the discrimination, future damages, attorneys fees, and appropriate injunctive relief.
Wednesday, September 29, 2021
New Book and Reviews: Anita Hill's "Believing" Sees Sexual Harassment and Gender-Based Violence as a Cultural and Structural Problem That Hurts Everyone
“An elegant, impassioned demand that America see gender-based violence as a cultural and structural problem that hurts everyone, not just victims and survivors… It’s at times downright virtuosic in the threads it weaves together.”—NPR
From the woman who gave the landmark testimony against Clarence Thomas as a sexual menace, a new manifesto about the origins and course of gender violence in our society; a combination of memoir, personal accounts, law, and social analysis, and a powerful call to arms from one of our most prominent and poised survivors.
In 1991, Anita Hill began something that’s still unfinished work. The issues of gender violence, touching on sex, race, age, and power, are as urgent today as they were when she first testified. Believing is a story of America’s three decades long reckoning with gender violence, one that offers insights into its roots, and paths to creating dialogue and substantive change. It is a call to action that offers guidance based on what this brave, committed fighter has learned from a lifetime of advocacy and her search for solutions to a problem that is still tearing America apart.
NYT Review, Anita Hill Has Some Perspective to Offer
Anita Hill still speaks in the measured tones she did while being questioned before an all-white, all-male panel before the Senate in 1991 — a young law professor in a blue linen suit who would give the nation an overnight education in workplace sexual harassment.
Thirty years later, she is more academic than activist, focusing on pathways to progress, and continuing to teach law as a professor of social policy, law and gender studies at Brandeis University.
But to be honest, Hill’s patience is waning. “I really am running out,” she said in a video interview from her home in Massachusetts earlier this month.
Her new book, “Believing: Our Thirty-Year Journey to End Gender Violence,” due out on Tuesday from Viking, aims to channel that impatience into something more substantive — a manifesto of sorts.
Believing: Our Thirty-Year Journey to End Gender Violence is not a book about Anita Hill. Yes, it has plenty of her personal stories and, yes, it references her role at the center of the Supreme Court hearing firestorm that first acquainted many Americans with the concept of "sexual harassment." ***
The book first attempts to show how massive problems like harassment and assault are affecting everyone from the smallest children to adults, from the lowest-wage workers to the highest-paid celebrities. Then, Hill shows both the effects of the problem — the ways it not only hurts individuals but hampers political change and economic growth — and the myriad barriers to solving it. To try to tackle something so complex, she says, feels like trying to "boil the ocean."
Tuesday, September 28, 2021
Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?
By: Linda C. McClain
Published in: Family Court Review (Forthcoming)
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.
. . .
This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.
Monday, September 27, 2021
The Eleventh Circuit published its opinion in Dean v. Warren. College cheerleader Tommia Dean, along with teammates, kneeled during the pre-game national anthem in support of the movement for racial justice. She alleged that the university, county sheriff, and a state legislator violated 42 U.S. § 1985(3) by conspiring to deprive her of her first amendment rights because the cheerleaders were African American and because of their protests against police brutality against African Americans. She alleged that the defendants retaliated against the kneeling by imposing a "tunnel rule" keeping the cheerleaders off the field during the national anthem for the first time in university history. The court upheld the district court's dismissal of her conspiracy claim against the sheriff, agreeing that he did not have the necessary class-based animus.
The case reminds us that women athletes have also powerfully used their status to advocate for racial justice. The case analysis of whether these women's commitment to racial justice constitutes a class interestingly compares and contrasts a case finding that opposition to abortion was not discrimination against women.
Dean has assuredly asserted a better qualifying class (African Americans) than the one grounding the § 1985(3) claim in Bray (women). Indeed, the class of African Americans is the strongest qualifying class imaginable because protecting African Americans and their advocates from the “massive, organized lawlessness that infected our Southern States during the post-Civil War era” was the chief purpose of § 1985(3)’s passage. Bray, 506 U.S. at 307, 113 S.Ct. 753 (Stevens, J., dissenting). We cannot say, however, that Bray offers us the latitude to apply a less demanding animus requirement to Dean’s claim on account of the strength of her qualifying class. Rather, Bray seems to have articulated the animus requirement for § 1985(3) claims across the board. See Bray, 506 U.S. at 274, 113 S.Ct. 753 (holding that, because opposition to abortion was not discrimination against women, the abortion clinics’ claim was “not the stuff out of which § 1985(3) ‘invidiously discriminatory animus’ is created”).* * *
Dean has offered us no argument that, although women seeking abortion is not an actionable class, protestors of police brutality is—and we can think of none. See Farber, 440 F.3d at 136 (explaining that although “ ‘women,’ or ‘registered Republicans,’ may constitute an identifiable ‘class’ ... a more amorphous group ... such as ‘women seeking abortion’ or ‘persons who support political candidates’ [does not]” (alteration adopted) (citations omitted)); Aulson v. Blanchard, 83 F.3d 1, 5–6 (1st Cir. 1996) (holding that a § 1985(3) class “[must be] comprised of a distinctive and identifiable group” and therefore rejecting a class defined as “persons who support other persons opposed to the politics of the old guard” (internal quotation marks omitted)). We therefore reject Dean’s political class-based theory of § 1985(3) liability without opining on whether a more identifiable and discrete political class may ground a § 1985(3) claim.
Thursday, September 23, 2021
Four years ago, Tarana Burke was a devoted but little-known activist with a vision for how victims of sexual violence could find empathy and healing.
Until now, Ms. Burke has never told her own story. In her memoir, “Unbound: My Story of Liberation and the Birth of the Me Too Movement,” which Flatiron Books is releasing on Tuesday, she reveals a close but complicated historical link between the civil rights movement and MeToo.
Last week, she spoke about what she owes to activists in Selma, Ala., why she turned away from them, and how her personal experiences, from Catholicism to an up-close view of the Central Park jogger case, influenced her founding of the MeToo movement.
Wednesday, September 22, 2021
Many of us have seen the iconic photo of interracial sisterhood with Gloria Steinem and Dorothy Pitman Hughes from 1971, now part of the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. While we know a lot about Steinem from popular media, history books, autobiographies and even a Broadway play, most of us know very little about Pitman Hughes. But we should.
The recent publication of Pitman Hughes’s biography—With Her First Raised: Dorothy Pitman Hughes and the Transformative Power of Black Community Activism—by University of Massachusetts historian Laura Lovett shares this forgotten history. According to Lovett, her book offers “a history of the women’s movement with children, race and welfare rights at its core, a history of women’s politics grounded in community organizing and African American economic development.”...
Throughout her life, Pitman Hughes sought to make the lives of ordinary women better by working to empower communities to meet their needs—whether that was child care, recognition of Black women’s inherent beauty or access to economic resources or local healthy food. The book recounts her early experiences of racism, including “routine extralegal violence from the Ku Klux Klan and the White Citizens’ Councils,” her work with the Congress on Racial Equality (CORE), the Black Panthers and Malcolm X, and her friendships with people like Flo Kennedy and Ti-Grace Atkinson, as well as Steinem....
“Dorothy’s style was to call out the racism she saw in the white women’s movement. She frequently took to the stage to articulate the way in which white women’s privilege oppressed Black women but also offered her friendship with Gloria as proof this obstacle could be overcome,” said Lovett.
Pitman Hughes also organized the first shelter for battered women in New York City, co-founded the New York City Agency for Child Development working to expand child care services in the city and was a co-founder of the National Black Feminist Organization.
Tuesday, September 14, 2021
By: Danielle Conway
Forthcoming in: 13.1 Ala. C.R. & C.L. L. Rev. 1 (forthcoming 2022)
America is at an unprecedented time with self-determination for Black women, and this phase of the movement is reverberating throughout this nation and around the world. There is no confusion for those who identify as Black women that this movement is perpetual, dating back to the enslavement of Black people in America by act and by law. One need only look to the intersecting crises of 2020 to discern the reality of Black women’s — and by extension the Black community and by further extension individuals and groups marginalized, subordinated, and oppressed by white patriarchy — perpetual struggle for civil and human rights.
To appreciate the genealogy of this perpetual struggle for civil and human rights, it is instructive to look back on the 100th Anniversary of the 19th Amendment and to be immersed in the stories and the legacies of Black women suffragists to gain insights about modern contestations against limiting the franchise. In the forming of this nation, Black women were intentionally excluded and erased from conceptions of humanity. This exclusion and erasure of Black women’s voices and contributions from the annals of social, political, and economic movements throughout history, such as abolitionist and women’s suffrage movements, tarnish the legitimacy of our democratic institutions, our laws, and our collective progress toward equality.
This article centers Black women’s lived experiences in the struggle for universal suffrage while also leading and supporting their communities in the fight against racial inequality and oppression. By making the sojourn through history using the lens of Black women, an opening is created to understand the perpetuation of racial injustice and oppression through the practices of withholding citizenship and the franchise. It also offers a window into the expertise and resilience of Black women in building and maintaining relationships, alliances, and coalitions to press for the larger vision of universal suffrage, even when their putative partners choose self-interest over the collective. The purpose of highlighting the duality of the movement is to contribute to the literature that seeks to reveal how Black women and their lived experiences with racism and oppression during the women’s suffrage movement up through and after the ratification of the 19th Amendment can inform today’s efforts at successful coalition building to support modern movements against injustice and inequality.
Monday, September 13, 2021
Goldburn Maynard, Jr. has posted his recent work Black Queers in Everyday Life on SSRN. This publication is forthcoming in 30 Tulane J. Law & Sex 129 (2021). The abstract previews:
I am using my Black queer identity as a starting point to consider the weaknesses I see in everyday conceptions of intersectionality. Do those who have been educated in the principles of intersectionality and who mean well apply them in online and personal conversations? Recent experiences have shown me that there is a disconnect, wherein even those individuals who know better will double-down on reified, essentialist notions of blackness that exclude the concerns of Black women, queer individuals, and other Black intersectional identities. Zero-sum perspectives are valued over coalitional appeals.
Maynard urges readers to think more critically about applying authentic and holistic commitments to intersectionality.
To what extent are we pushing our students and ourselves to interrogate their own privileges? More work needs to be done to figure this out, since stakes are so high. A lot of the potential interventions and solutions depend on what the reasons are for the resistance to intersectionality principles. A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications. I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.
Monday, August 30, 2021
Scott Stern has published The NAACP’s Rape Docket and the Origins of Criminal Procedure in volume 24 of the University of Pennsylvania Journal of Law & Social Change. The abstract summarizes that:
This Article provides the definitive account of the surprisingly voluminous docket of rape cases argued by the National Association for the Advancement of Colored People (NAACP). It argues, for the first time, that the NAACP’s rape docket was central to the development of modern criminal procedure—to the establishment of the right to counsel, the right to remain silent, the right to a trial free from mob violence or influence, the right against self-incrimination via a coerced confession, and the right to a jury of one’s peers selected without discrimination. Drawing on original archival research, this Article demonstrates that all of these rights have their origins in the hundreds of cases argued by the NAACP on behalf of Black men accused of sexual assault by white women. * * * *
[T]his Article examines cases in which the NAACP advocated for Black women who accused white men of sexual assault. Throughout its history, the national office of the NAACP advocated for Black female rape survivors only rarely. In contrast, the local branches of the Association did advocate for dozens of Black women who had been raped by white men, often pushing the police to investigate, the prosecutors to bring charges, and sometimes even hiring their own attorneys to aid in prosecutions. Yet at no point did NAACP attorneys ever challenge the rape laws that placed punitively high demands on assault survivors and impeded countless prosecutions. This was largely because NAACP attorneys embraced the very politics of respectability that justified sexist rape laws; indeed, NAACP attorneys capitalized on the gendered aspects of these laws in their representation of Black men accused of rape. Although many Black women throughout the decades demanded the NAACP engage more often in anti-rape work, such pleas usually met with silence. Had the NAACP acceded to these demands and pushed for a criminal procedure focused on protecting rape survivors as well as rape suspects, the greater protections that contemporary rape laws now provide for survivors could have come about much sooner.
The article also unpacks some of the relationship between the NAACP’s rape docket and its relationship to the feminist movement.
Friday, August 27, 2021
Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School
Amy H. Soled and Barbara Hoffman, Building Bridges: How Law Schools Can Better Prepare Students from Historically Underserved Communities to Excel in Law School, AALS Journal of Legal Education, Volume 69, Issue 2 (Winter 2020).
“As a poor, first-generation student, I constantly fear the judgment of my peers. . . . For me, the challenge of law school is not only overcoming the rigorous coursework. I must also overcome the social and financial barriers seeking to steer me away.” This reflection of a current Rugers Law School student, captured by Professors Amy Soled and Barabra Hoffman, is unfortunately an all-too-common sentiment for a number of students in your law school classrooms. Students who are members of historically underserved communities, those whose circumstances “disadvantage them in relation to their classmates whose privileged environment better prepare them for law school,” often find the law school challenging in more ways than just academic rigor. These students, who are historically underserved based on circumstances including but not limited to “economic status, race, nationality, sexual orientation, gender identity, and/or education background,” encounter “social and cultural isolation” in an environment that unconsciously or otherwise has “an invisible and assumed perspective that is largely white, male, heterosexual, economically advantaged, and able-bodied.” This isolation can lead to significant barriers to academic success in law school and ultimately passing the bar.
So what can we as legal educators do to address the needs of our students of different backgrounds and bridge this gap? Professors Soled and Hoffman suggest “[b]uilding bridges to enable students from historically underserved communities to thrive in law school requires law school professors and administrators to implement a multiyear plan from orientation through graduation.” This plan can include academic success programs starting in the summer before law school and extending through the entirety of the 1L year; creating mentoring programs of faculty, staff, and local practitioners; and fostering a sense of community in the classroom and beyond.
For example, professors can create community and inclusion by holding mandatory individual conferences once a semester, which creates a space for students to engage with the professor in a low-stakes one-on-one environment. “The more contact students have with their teachers, the better the students do and the more connected the students feel to their school.” Professors can also address the pervasive and insidious “imposter phenomenon” which describes students who are “unable to internalize [their] accomplishments [and have] chronic feelings of self-doubt and fear of being discovered” as a fraud. Students of historically underserved communities disproportionately experience this phenomenon. That is “[w]omen suffer from the imposter syndrome more commonly than do men, first-generation college students experience it more often than do multigeneration college students” etc. Professor can help by discussing this, and other common challenges, openly in their classrooms and student conferences.
These and many other concrete suggestions for building these bridges of success for historically underserved students are addressed in this article.
Thursday, August 19, 2021
The closing decades of the twentieth century witnessed an exciting surge in scholarly attention among legal academics to the legal status of women of color. Both traditional civil rights scholars and critical race theorists attempted to integrate into law and legal scholarship the experiences of minority women. This work gave rise to the theory of “intersectionality,” which posited that Black women share unique life experiences that differ from Black men or White women. The theory further suggested that this uniqueness makes (and/or should make) a difference in how legal scholars deconstruct and reconstruct law. Critical race feminism extended this critique beyond the experiences of Black women, focusing on how race, gender, and class interact for women of color within a system of white male patriarchy and racist oppression. Intersectionality and critical race feminism have provided fresh perspectives on the analysis of issues in many legal settings. The purpose of this symposium is to revisit the theoretical and practical possibilities of intersectionality and critical race feminism. The articles in this symposium issue, covering a wide range of topics, have brought to light substantive issues and intellectual tensions that will dominate future debates within critical scholarship and beyond. Together, they provide a compelling portrait of the future of intersectionality and critical race feminism.
Friday, August 13, 2021
Robert L. Nelson, Ioana Sendroiu, Ronit Dinovitzer, and Meghan Dawe, Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, Law and Social Inquiry, Volume 44, Issue 4 (2019).
In this article, the authors discuss workplace inequities based on race, gender, and sexual orientation. To do so, they combine quantitative and qualitative data to go beyond “analyzing unequal outcomes” and delve further into “the mechanisms that produce and maintain workplace hierarchies of race, gender, and sexual orientation.” The qualitative component uses perception as a measure, that is, the authors “examine[d] whether lawyers perceive that they have been the target of workplace discrimination.”
Although some might be hesitant to consider perceptions as a reliable measure, consider that “[p]erceptions of discrimination by marginalized groups are significant in their own right as a matter of workplace equality, but will also likely affect their health and well-being, their job satisfaction, and their willingness to continue working for a given employer.” Additionally, these perceptions, with a few exceptions examined by the authors, tend to be supported by the quantitative data regarding measurable inequitable outcomes on the basis of race, gender, and sexual orientation.
This qualitative data is also important in determining “how inequality is created and maintained, rather than merely its extent.” By analyzing this data, the authors necessarily highlight areas and circumstances of perceived discrimination from which employers in the legal profession can derive solutions for combatting such inequities, or perception of inequities. Examples could include instituting efforts or programs that foster community and belonging; formalized personnel structures and policies that produce consistency and transparency in employment law processes like hiring, promotion, and complaint procedures; and generally having sound hiring practices that lead to increased diversity in the workplace, which will in turn lend itself to greater emotional and informational support to members of traditionally underincluded groups.
The inequities and perceived inequities that this article illustrates poses a challenge to us all as legal professionals to understand the scope of the problem and implement strategies to remove these barriers. Indeed, as the authors point out, “[t]o the extent that lawyers of different races, genders, and sexual orientations are exposed to discrimination that limits their career development, it will erode the capacity of the legal profession to provide equal representation to all groups in society. . . . The fate of equal justice may be tied to the fate of equal opportunity in lawyer careers.”
Tuesday, August 10, 2021
Federal appeals court will hear novel argument, invoking 19th Amendment, against felon voting restrictions
A federal appeals court rendered a decisive victory for Gov. Ron DeSantis and legislative Republicans last year in upholding Florida’s law requiring felons to pay all fines, fees, and restitution before they can win back the right to vote under 2018’s Amendment 4.
But that ruling, by the full U.S. Court of Appeals for the 11th Circuit, didn’t quite kill every challenge to the law, known as SB 7066.
. . .
The plaintiffs now before the court are Rosemary McCoy and Sheila Singleton, two Black women with felony records who have been denied the right to vote under the Florida law because their criminal records prevent them from getting jobs that would pay enough for them to satisfy restitution orders.
The defendants include DeSantis and Laurel Lee, Florida’s secretary of state, who oversees elections.
“Appellants’ lawsuit requires the state of Florida to acknowledge the compounding impact of race, class, and gender in a law like Senate Bill 7066 that ties the payment of legal financial obligations (“LFOs”) to the right to vote, but artificially disentangles the continuing burdens low-income women of color face in satisfying those financial obligations,” their lawyers wrote in their opening brief.
By: American Association for Justice Research
Arbitrators in consumer and employment cases are mostly male and overwhelmingly white. At AAA and JAMS, the two largest consumer and employment arbitration providers in the country, 88% of arbitrators are white and 77% are male. And that’s as diverse as it gets. In 2019, members of the National Academy of Arbitrators determined that over the organization’s 72-year history only 35 Black, Indigenous, and people of color (BIPOC) had been admitted, just 2% of the overall membership. To put this into perspective, individuals who identify as BIPOC make up nearly 40%, and women make up 51%, of people living in the United States.
Few people realize that forced arbitration provisions eliminate their constitutional right to a trial before a jury of their peers. But for minorities and women, forced arbitration not only eliminates the jury but also all but ensures their case will be decided by a white male. A consumer is more likely to be struck by lightning than win a monetary award in forced arbitration as it is; being Black or female reduces their prospects even further.6Take for example a recent Tesla case, in which a Black employee detailed suffering at least a dozen instances of racial slurs and threats, including video of coworkers threatening him while using the n-word. Though Tesla CEO Elon Musk apologized to the employee, agreed changes needed to be made, and offered to settle the case, Tesla eventually took the case to arbitration, where a white arbitrator ruled that the slurs weren’t racist and were more “consistent with lyrics and images commonly found in rap songs.”
By: I. Bennet Capers
Published in: Minnesota Law Review, Vol. 106, 2021
In this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it is past time to acknowledge how law schools function as “white spaces.” For starters, there are the numbers. There is a reason why just a few years ago, The Washington Post ran a headline describing law as “the least diverse profession in the nation.” But the argument goes beyond numbers. This Essay argues that law schools—even law schools at HBCUs— function as white spaces. They are white spaces in what they teach, in how they teach, and even in their architecture.
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Lani Guinier makes a similar observation in Becoming Gentlemen, in which she describes trying to find her voice in a room adorned by “the traditional larger-than-life portraits of white men . . . portraits that seemed to speak louder than I ever could.”She later adds that “the gigantic male portraits had captured and frozen in time the alienation from class, race, and gender privilege we had felt as students . . . reminding us that silence was the price of admission.”
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It has now become common, almost de rigueur, for law schools to commit themselves to being anti-racist and truly inclusive. Indeed, it has become so expected that it may even seem like virtue signaling, “sound and fury, signifying nothing.” I hope not. I hope law schools are sincere. But my larger hope is that law schools will do more than simply proclaim a goal of anti-racism, or commit to admitting a more diverse student body or hiring more diverse faculty, or commit to incorporating race in their curricula. Even with these changes, law schools will still function as white spaces in terms of what is taught and how it is taught and even in terms of their architecture. My hope is that law schools will have the courage and audacity to reimagine themselves as a different kind of white space—a blank page, a tabula rasa—and to untether themselves from so much that weighs them down. That they will reinvent themselves from the bottom up in a way that is cosmopolitan and then some, as a place where intellectual curiosity thrives, where change and challenge are celebrated, where education itself is a practice of freedom, and where there is no need to tout inclusivity, because everyone already belongs.
Tuesday, August 3, 2021
There are now more than 1.3 million attorneys in the country, though that figure dipped slightly in the past year—a decline the ABA attributed to Vermont starting to count only lawyers who reside in the state and not those who practice there. The ABA on Thursday released its annual Profile of the Legal Profession, with updated data on lawyer demographics broken down by gender, race, geography and age. While the ABA issues new figures each year, it compares that data to the previous decade to highlight trends and changes over time.
The percentage of women attorneys increased to 37% from 33% in 2011, according to the report, and racial diversity in the profession has also made slow but steady progress. Lawyers of color made up 11.2% of all attorneys in 2011, and now comprise 14.6%. But those gains were not seen across all minority groups.
The percentage of Black attorneys decreased slightly from 4.8% in 2011 to 4.7% this year—far lower than the more than 13% of Americans who are Black. The percentage of Native Americans also declined, from 1% in 2011 to less than half a percent this year.