Law Commons^™

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

All Faculty Scholarship

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context by reminding readers …

The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri

All Faculty Scholarship

This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …