Law Commons^™

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

No First Amendment Shield For Homophobic Prof, Arthur S. Leonard

Other Publications

No abstract provided.

For What It's Worth: The Role Of Race- And Gender-Based Data In Civil Damages Awards, Loren D. Goodman

Vanderbilt Law Review

Following months of behavioral problems, hyperactivity, and intermittent complaints of headache and nausea, five-year-old Kelsey Craig's mother finally takes her to the pediatrician to determine the root of the problem. After multiple consultations, a blood test shows a surprising culprit: there is a dangerously high amount of lead present in Kelsey's blood, suggesting prolonged exposure to the irreversibly toxic substance. Upon returning to their older, prewar apartment building, Kelsey's mother passes a neighboring family in the hallway and woefully relays the tale of her diagnosis. The neighbors' eyes grow wide as they realize their own five-year-old son has been experiencing …

The Racist Algorithm?, Anupam Chander

Michigan Law Review

Review of The Black Box Society: The Secret Algorithms That Control Money and Information by Frank Pasquale.

Identity And Form, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …

Equality And The European Union, Elizabeth F. Defeis

Georgia Journal of International & Comparative Law

No abstract provided.

Women Of Color In Legal Education: Challenging The Presumption Of Incompetence, Carmen G. Gonzalez

Carmen G. Gonzalez

Female law professors of color have become the canaries in the academic mine whose plight is an early warning of the dangers that threaten legal education and the future of the legal profession. As legal education is restructured in response to declining enrollments, tenure itself is coming under fire, and downsizing and hiring freezes are becoming more common. Female law professors of color, who tend to be concentrated at middle- and lower-tier law schools, are particularly vulnerable. But this vulnerability may foreshadow the predicament of all but the most elite law faculty if academic employment becomes increasingly precarious. This article …

Presumed Incompetent: Continuing The Conversation (Part I), Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

Introduction: Presumed Incompetent: Continuing The Conversation (Part Ii), Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …

Presumed Incompetent: The Intersections Of Race And Class For Women In Academia, Carmen G. Gonzalez

Carmen G. Gonzalez

Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. The narratives are filled with wit, wisdom, and concrete recommendations, and provide a window into the struggles of professional women in a racially stratified but increasingly multicultural America. The downloadable document contains the Introduction …

Redefining The Black Face Of Affirmative Action: The Impact On Ascendant Black Women, Kevin D. Brown, Renee E. Turner

Articles by Maurer Faculty

The racial and ethnic ancestries of blacks benefiting from affirmative action is changing, as foreign-born blacks and blacks with a non-black parent constitute disproportionately large percentages of blacks attending many selective higher education institutions. Coupled with the challenges arising from the educational achievement levels of black males during the past two decades, Brown and Turner examine the implication of these developments and the likelihood that they are creating further disadvantages for black women lawyers.

Presumed Incompetent: The Intersections Of Race And Class For Women In Academia -- Introduction, Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. One of the topics addressed is the importance of forging supportive networks to transform the workplace and create a more hospitable environment for traditionally subordinated groups. The narratives are filled with wit, wisdom, and …

An Agenda For Women Lawyers: Pandora's Box, Ann Fagan Ginger

Golden Gate University Law Review

No abstract provided.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Lawrence Summers At The Nber Conference: The Real Deal, Taunya Lovell Banks

Taunya Lovell Banks

This mini commentary is written in response to a public speech made by Lawrence Summers, then President of Harvard University in 2005 in which he asserted that the under-representation of women in science and engineering may be due in part to biological differences in abilities between women and men. This commentary argues that Summers' remarks constitute a brief against affirmative action for women stated so broadly that it easily encompasses objections to affirmative action for blacks and other non-white Americans. It concludes that our inability or unwillingness to make connections between gender bias and racial privilege helps to maintain a …

Lawrence Summers At The Nber Conference: The Real Deal, Taunya Lovell Banks

Faculty Scholarship

This mini commentary is written in response to a public speech made by Lawrence Summers, then President of Harvard University in 2005 in which he asserted that the under-representation of women in science and engineering may be due in part to biological differences in abilities between women and men. This commentary argues that Summers' remarks constitute a brief against affirmative action for women stated so broadly that it easily encompasses objections to affirmative action for blacks and other non-white Americans. It concludes that our inability or unwillingness to make connections between gender bias and racial privilege helps to maintain a …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Global Issues In Compensatory Justice: Introduction, Penelope Andrews

Articles & Chapters

No abstract provided.

The Political Economy Of Recognition: Affirmative Action Discourse And Constitutional Equality In Germany And The U.S.A., Kendall Thomas

Faculty Scholarship

This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German "positive action"' applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has …

Foreword (Symposium: Finding A Path To Gender Equality: Legal And Policy Issues Raised By All-Female Public Education), Nadine Strossen

Articles & Chapters

No abstract provided.

Intersectionality And Positionality: Situating Women Of Color In The Affirmative Action Dialogue, Laura M. Padilla

Faculty Scholarship

This article explores the position of women of color in the affirmative action dialogue. Affirmative action has come under attack locally, statewide, and federally. During this same period, critical race feminists have brought into sharp relief how women of color are marginalized or erased in discourses over sex and gender, as well as over race and ethnicity. Despite these protests and warnings, the current debate over affirmative action continues this history of invisibility, perpetuating America's spoken and unspoken conceptions about where women of color belong. For example, most discussion of affirmative action focuses on race, more specifically on African-Americans. Some …

Proposition 209, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I have a proposition for you. It's called Proposition 209. All you have to do is stop discriminating in favor of women and racial minorities, and your perpetual problems of race and gender discrimination will finally disappear. If this Proposition sounds too good to be true ... well, you know how the saying goes. In law, as in life, the seductiveness of a proposition owes as much to its disregard of established norms as to its underlying content. Eliminate the affront to social convention, and a proposition promises about as much excitement as a routine liaison with one's spouse. But …

Playing The "Gender" Card: Affirmative Action And Working Women, Mary K. O'Melveny

Kentucky Law Journal

No abstract provided.