The Faculty Lounge

Symposium Announcement—The Federal Income Tax: Racially Blind but Not Racially Neutral

Ohio State Center for the Study of Race and Ethnicity Seeks ED

This just in:

The Ohio State University, a top 20 public research land-grant university and the state’s flagship, invites nominations and applications for the position of Executive Director (ED) of the Kirwan Institute for the Study of Race and Ethnicity. Established in 2003, The Kirwan Institute is an interdisciplinary engaged research institute named for former university president William E. “Brit” Kirwan in recognition of his efforts to champion diversity at Ohio State. The Kirwan Institute researchers, affiliated faculty, collaborators, and community partners conduct research to inform policies and practices that help create a just and inclusive society where all people and communities have an opportunity to succeed. The Institute fulfills its mission by connecting communities with opportunities needed for thriving by conducting research that leads to and/or supports educating the public, building the capacity and evidence-based policy knowledge of allied social justice organizations, and supporting efforts that advance equity and inclusion.

Reporting to the provost or her designee, the Executive Director is responsible for leading the Kirwan Institute’s education, research, and outreach missions. As a scholar leader, the Executive Director is expected to develop programs and strategies that support faculty research on race and ethnicity; build relationships and create new opportunities for Ohio State faculty to collaborate and engage in research with one another; advance collaborations and interdisciplinary research outside of the Institute, and partner on faculty development initiatives. As the leader of one of the nation's most prominent centers focused on racial equity and the role of race in society, the Executive Director will be responsible for a substantial operating budget and enjoy meaningful budgetary and resource support from the university. The Executive Director will be expected to contribute to building a community where faculty can come together to collaborate, learn, and excel together as a community of scholars.

This opportunity is a tremendous one for an active scholar of race and ethnicity to build upon the Kirwan Institute’s strong foundation and national reputation. The Executive Director will bring a commitment to interdisciplinary engaged research and an instinct for institutional collaboration. The individual will be a distinguished scholar with the talent and inclination for setting a strategy in collaboration with priority initiatives of the university.

 

Help Promote this Short Film About Environmental Racism

Confronted with a difficult issue of environmental racism in North Law Vegas, law professors at UNLV Boyd, Frank Fritz and Ngai Pindell, along with Senator Dina Neal and law students Candace Mays and Sebastian Ross, took a creative approach. Windsor Park, a historically African American neighborhood of North Las Vegas, was built on a fault and is now sinking. Many homes are uninhabitable and others are in dire need of reconstruction. Boyd Law School teamed up with the UNLV Film School professor Brett Levner and her graduate assistant Olivé to make a short documentary about Windsor Park.

It’s well worth 10 minutes to view this film, which is an amazing look into the segregationist history of Las Vegas and its enduring consequences for the city’s African American citizens. Please watch Windsor Park: The Sinking Streets and recommend it to others and share it widely with others.

#Liftupwindsorpark also needs help. If you have time and interest, please contact the team here. Help of all kinds would be appreciated, even if you are just willing to talk out ideas or be a sounding board or think you know a person or law organization who might be able to help. Follow on Facebook @liftupwindsorpark and on Instagram @liftupwindsorpark. To fix this problem will truly take a village. Environmental racism is a feminist issue. #liftupwindsorpark

-Kathy Stanchi

Thompson v. Clark & the "indications of innocence" standard under Section 1983

I wanted to share this excellent op ed piece by BU Professor Jasmine Gonzales Rose about the unfair "indications of innocence" standard used by some Circuits in Sec. 1983 actions and the pending Supreme Court case, Thompson v. Clark, which could change it. https://lnkd.in/dCRg9S-D #policeaccountability #criminaljusticereform #section1983

Using Rewritten Judicial Opinions to Teach CRT While Reinforcing Doctrinal Lessons

These are certainly interesting times to teach and write about critical race theory. As CRT becomes the new political scapegoat, US law schools are (finally) beginning to explore how to teach students law while also teaching them about the racism (and misogyny and homophobia) embedded in the law.

The question, of course, is always how to integrate CRT. Standalone courses are great, but they reach only a handful of students. And law professors often feel like they cannot add lengthy critical scholarship readings to already overpacked doctrinal courses.

One answer to the dilemma is to use rewritten judicial opinions. The Feminist Judgments series offers opinions that look like “real” judicial opinions but include critical race reasoning (as well as other critical legal perspectives). These rewritten opinions are shorter than most scholarly articles and can be a quick and effective way to incorporate CRT into your class. Because they are relatively short, they can be assigned ahead of time along with the original opinion or can be read as part of an in-class exercise as described by Bridget Crawford in this book chapter.

Teaching sexual harassment law? Dean Angela Onwuachi-Willig’s rewritten opinion in Meritor Savings Bank v. Vinson uncovers the racial dynamics of sexual harassment that were obscured in the original opinion. Or maybe you are teaching employer appearance codes in your employment law class. Consider assigning Professor Wendy Greene’s rewrite of EEOC v. Catastrophe Management Solutions, in which she reveals the racism and misogyny underlying what US law considers professional or appropriate for the workplace.

Teaching battery in Torts and want to stimulate a critical discussion of the bias inherent in determinations of intent or damages? Consider Professor Alena Allen’s rewrite of Robinson v. Cutchin, in which she criticizes the argument that an African American woman subjected to an unwanted tubal ligation during her C-section had suffered “no additional physical pain, injury or illness.” Professor Allen’s opinion is the perfect vehicle to teach students about the dangers of an ahistorical approach to doctrine because it places the concept of informed consent in the context of the history of involuntary sterilization of poor African American women in the United States.

These are just a few examples. Others include Professor Marley Weiss’s rewrite of Ricci v. Distefano in the Employment Discrimination volume, Professor Jennifer Wriggins and Professor Sara Cressey’s rewrite of G.M.M. v. Kimpson in Torts, Professor David Brennen’s rewrite of Bob Jones University v. United States in the Tax volume, and Dean Browne Lewis’ rewrite of O’Neal v. Wilkes in the Trusts & Estates volume, and Professor Teri McMurtry-Chubb’s rewrite of Loving v. Virginia in the Supreme Court volume, to name just a few. Go to the Feminist Judgments website for resources about how to teach using alternative judgments.

The best part is that if your library subscribes to the electronic versions of the volumes on Cambridge Core, students and faculty can read and download individual opinions via their library websites with no extra charge. Right now, Cambridge University Press is running a promotion where readers can access free chapters and libraries (and others) can get a discount on purchases of volumes in the series.

If we are going to be criticized for teaching CRT anyway, we might as well run with it.

-Kathryn M. Stanchi

When the IRS Does Know Your Race

Professor Jeremy Bearer-Friend (GWU) sparked much productive academic dialogue with his article, Should the IRS Know Your Race? The Challenge of Colorblind Tax Data, 73 Tax L. Rev. 1 (2019). He ultimately argues that the IRS should not collect such data on the Form 1040, favoring instead alternative intermediate steps that he describes in the article. (Of course, as Professor Bearer-Friend points out, scholars like Dorothy Brown, Beverly Moran and others have drawn on other publicly available sources, such as the Current Population Survey and Survey of Consumer Finances, to triangulate on race-relevant tax data.)

I was discussing this concept of "colorblind" tax data with students recently. One of them pointed out that there is at least one place where the IRS does ask taxpayers about their race. There are optional race-related questions on Form 13614-C, the Department of the Treasury-Internal Revenue Service Intake/Interview and Quality Review Sheet. This is the form that volunteer income tax preparers typically use to gather information from clients at VITA programs around the country.

The optional questions, which the form states "will be used only for statistical purposes," elicit information about the client's ability to speak and read English, whether any member of the client's household has a disability, whether the client or the client's spouse is a veteran of the U.S. Armed Forces, and the race and ethnicity of the client and the client's spouse.

Judging by the positioning of the questions, my guess is that the "statistical purposes" have to do with gathering data about the demographics of the populations served by various VITA programs. I admit that I had never thought about the significance of that part of the form in light of Professor Bearer-Friend's  question, "Should the IRS know your race?" I'd love to know more about how this data is used and what it reveals. Sometimes the IRS does ask directly about a taxpayer's race.

Rosenblum: Our Shared Duty Now: Law Professors Must Bring Racial Equity into Each Course

The following is a guest post by Professor Darren Rosenblum (Pace).

The killing of George Floyd this summer has exposed, for a far broader (largely white) population, the endemic nature of racism and the urgent need to fix the vast inequities it creates throughout our legal system, but especially in criminal law. Recent data reveals how people of color are twice as likely to die from COVID-19 than whites. As with allowing anti-Black police violence, our public health choices reflect deliberate decisions by governments and companies as to whose lives matter.

As legal educators, we cannot repair the world. But as Edward Hale said “I am only one, but I am one. I can't do everything, but I can do something. The something I ought to do, I can do.” The urgent nature of the crisis obligates us to do something, and it must be now.

We law professors have seen how these exclusions play out within our institutions and our profession: Black students don’t advance as other students do. They don’t participate as much in class and in school governance. They join a legal profession that reflects a profound structural racism. Many Black associates join firms, but only a tiny number make partner.

It is our duty to begin to rectify this shocking inequality. We law professors share this responsibility, individually and collectively, to make law schools deliberately inclusive places for our students to learn. We must do this to make our Black students feel welcome so that they learn and become full members of our profession. We must also do it for all our students to model for them what our profession should look like.

Just as we labor over our first year curricula with fine-toothed combs to get the balance just right, we must endeavor to realize greater inclusion in our institutions. Many important conversations have happened this summer to evaluate these challenges, and the conclusions have been clear: we must do much more to include racial equity in our schools and classrooms.

I want to make a much more pointed intervention. While the conversations about racial equity should happen everywhere and in greater depth, here, I want to make a discrete challenge to my colleagues: each and every one of us – at my home institution and every other law school – should include one class in each course on racial equality issues.

 

 

Reflections on Minneapolis, New York, Race, Policing, and Zoning - Part 3 of 3

The following is a guest post by Andrea McArdle, Professor of Law, City University of New York School of Law. Part 1 is here. Part 2 is here.

Part 3: Policing, Race, and Minneapolis’s Single-Family Zoning Reform

Desirable reforms to the culture and economy of policing will not on their own overcome the disparities that are key to the tale of two cities, disparities that reflect the economic and social devaluing of people of color. The two cities trope at its core calls attention to a need to place institutions associated with property at the center of how we think about policing and race.

Perhaps the most consequential reform that Minneapolis has recently undertaken is one that does not relate to policing at all, but holds out the promise of fundamental change. Last year, the city finalized historic steps to abolish single-family zoning, the residential land-use classification enshrined in Village of Euclid that suppresses the diversity and affordability of housing within large swaths of cities, perpetuates class- and race-based exclusion in access to housing and neighborhoods, and, in adding obstacles to home ownership, limits the opportunities that rising property values afford to accumulate intergenerational household wealth. The measure was adopted to increase affordable housing options and acknowledge the city’s racially exclusionary history limiting access to single-family home ownership. Reflecting the goals of Minneapolis 2040, the city’s comprehensive plan, the zoning revision was not a symbolic gesture, but designed to break down economic barriers and make home ownership more accessible. 

Reflections on Minneapolis, New York, Race, Policing, and Zoning - Part 2 of 3

The following is a guest post by Andrea McArdle, Professor of Law, City University of New York School of Law. Part 1 is here.

Part 2: A Tale of Two Cities

The political, economic, and social realities of Minneapolis and New York City underscore how their local experience fits the “tale of two cities” trope. At a policy level, each embraces equity and racial equality. Yet significant differences based in race and socioeconomic indicators persist, and have challenged efforts to unify disparate communities. These differences exist in employment, housing, access to health care, and education. Minneapolis has adopted laws to improve the general economic well-being of workers, increase the minimum wage and paid sick leave, and protect against wage theft, but white residents, comprising 60% of the city’s population, are the most secure economically. They surpass people of color in earnings and in homeownership, a key determinant of ability to accumulate intergenerational wealth. In Minneapolis, almost 60% of white households are homeowners, whereas fewer than 25% of African Americans, Native Americans, and Latino households own homes, a legacy pointing to the history of racial covenants in the city as well as the federal redlining policies that denied residents of African-American neighborhoods and other “inharmonious racial or nationality groups” access to financing to purchase a home.  Race, ethnicity, and income-based differences are evident in Minneapolis, and across the state, in students’ performance on standardized tests and in college readiness, even as Minnesota has equalized funding across school districts, and Minneapolis desegregated its schools. Children’s life chances reflect differences long before school begins; in Minneapolis, infant mortality rates are substantially higher among African American and Native American households than for other residents.

Reflections on Minneapolis, New York, Race, Policing, and Zoning - Part 1 of 3

The following is a guest post by Andrea McArdle, Professor of Law, City University of New York School of Law

Author's Note: These reflections on recent developments in Minneapolis and New York City are offered through an urban lens and a property-based perspective, prompted in part by an  American studies/urban studies background,  past work co-editing two collections on policing (in the late Giuliani and early Bloomberg years in New York) and teaching property, real estate, and urban land use courses.

Part 1: Reflections on Minneapolis, New York, and the Limited Context of Policing Reforms

Minneapolis and New York, markedly different in size, demography, economy, and geography, have become bound together by the anguished exclamation, “I can’t breathe,” the shared cry of Minneapolis resident George Floyd on Memorial Day and, five years earlier, New York City resident Eric Garner, unarmed African-American men who died during police-initiated interactions.  Despite progressive political cultures, both cities have long been plagued by police violence against African-Americans as well as stark socioeconomic disparities. The social protests that have roiled both cities, and communities across the U.S. and globally, since the killing of George Floyd by police officer Derek Chauvin have already produced legislative and policy reforms. Minneapolis has banned police use of chokeholds, and a “veto-proof” nine members of its City Council have committed to defund the city’s police department and create a new paradigm of public safety. Chauvin, and the other officers present at George Floyd’s killing, were dismissed and have been criminally charged. The New York City Council has criminalized chokeholds, among other reform measures, Mayor Bill deBlasio promised to transfer funds from the police department’s $6 billion budget to youth and social services, in a partial response to similar defunding demands, and the Police Commissioner reassigned 600 officers of a famously aggressive anticrime unit. The New York State legislature has also enacted reforms, and New York’s Governor Andrew Cuomo issued an executive order requiring all localities to “reinvent” their police departments and adopt confirming legislation by next April 1.

Talking About Black Lives Matter and #MeToo

In April, 2019, the Wisconsin Journal of Gender, Law & Society sponsored a symposium on "Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century." Instead of preparing individual papers for publication, the speakers at the symposium collaborated on a joint essay--written in a conversational style--that both captures and extends salient portions of the symposium discussion. The essay--written by Linda Greene (Wisconsin), Lolita Buckner Inniss (SMU), Mehrsa Baradaran (UC Irvine), Noa Ben-Asher (Pace), Bennett Capers (Brooklyn), Osamudia James (Miami), Keisha Lindsay (Wisconsin, Political Science & Gender and Women's Studies) and me is now available on SSRN.

Here is the abstract:

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, implications, and future of Black Lives Matter and #MeToo.

This essay organizes around internal and external spatial metaphors and makes five schematic moves. First, internal considerations ground comparisons of the definitions, goals, and ideas of success employed by or applied to Black Lives Matter and #MeToo. Second, external concerns inspire questions about whether both movements may be better understood through the lens of intersectionality, and relatedly, what challenges these movements pose for an intersectional analysis. Third, a meta-internal framework invites inquiry into how the movements shape the daily work of scholars, teachers, lawyers, and community activists. Fourth, a dialectical external-internal frame drives questions about the movements’ effects on law and popular culture, and the reciprocal effects between those external influences and the movements themselves. Returning to an external, even forward-looking, approach, we ask what the next steps are for both movements. This five-part taxonomy frames the inquiry into where the Black Lives Matter and #MeToo movements are located individually, but also where they are co-located, and, perhaps most importantly, where they are going.

The full essay is available here.

CFP: Thirteenth Amendment and Racial Justice Conference

Chicago-Kent College of Law at Illinois Institute of Technology is hosting the Thirteenth Amendment and Racial Justice Conference on November 9–10, 2019. The conference focuses on the ways that the Thirteenth Amendment can be used in legislation and litigation, or in the context of social movements, to promote racial justice in the United States. 

The conference organizing committee invites Thirteenth Amendment scholars from all disciplines—including law, politics, and history, as well as practitioners and activists in the field of racial justice—to submit papers that interrogate the relationship of race and other markers of identity such as class, gender, sexual orientation, disability, religion, and immigration status; to forms of subordination both past and present; and strategies for challenging them. The committee is interested in international perspectives and invite scholars from beyond the United States to participate.

This conference will be the third event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste, and poverty at law schools and universities throughout the United States and the wider world. For more information about the Thirteenth Amendment Project, please visit its website at scholars.law.unlv.edu/amend13/.

The committee is seeking publication opportunities in a variety of outlets for papers presented at the conference. It extends a special invitation to scholars new to the field (including junior faculty and senior scholars) to submit proposals for works in progress. Senior scholars who have written extensively in this field will provide feedback and detailed commentary for planned publication.

To submit a paper for consideration, please email an abstract of no more than 300 words by May 15, 2019, to 13thamendproj@gmail.com. The conference organizing committee will notify applicants of its decisions by June 30, 2019. A preliminary program will be posted by September 15, 2019. 

Editorial note: This conference is time to fit with the annual Constitutional Law Colloquium at Loyola Chicago Law School. The colloquium at Loyola Chicago ends on Saturday at lunchtime; this conference begins at Chicago-Kent on Saturday afternoon.

The Stennis Flag

In 1894 Mississippi adopted its current state flag, which prominently incorporates the Confederate battle flag saltire. Thus far every effort to remove the Confederate emblem from the state flag has failed. In 2001, for example, 65% of Mississippi voters chose to keep the current flag in a statewide referendum.

But change may be afoot. According to a Washington Post article yesterday, a new flag is gaining traction in Mississippi. Known as the “Stennis Flag,” it consists of a large blue star on a white background, surrounded by 19 smaller stars, and bordered by two large red bars. 

As explained by Laurin Stennis, the flag’s designer, the Stennis Flag incorporates four distinct symbols:

Equality Law Scholars' Forum at UC Davis Tomorrow

The second annual Equality  Law Scholars' Forum kicks off at UC Davis tomorrow.  I'm looking forward to being one of the commentators on a fantastic set of papers. Here are some details:

Second Annual Equality Law Scholars’ Forum

Friday, November 16 – Saturday November 17, 2018

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

This year, the Forum will feature six presenters (chosen from over forty submissions):

The New Coverture, Albertina Antognini (Arizona College of Law)

Stealing Education: Protecting Racial Capital in “White” Schools, LaToya Baldwin Clark (UCLA School of Law)

Affirmative Action Misclassification, Jonathan Feingold (UCLA Office of Equity, Diversity, and Inclusion)

The Aesthetics of Disability Law, Jasmine Harris (UC Davis School of Law)

Legislating with Tall Tales, Goldburn Maynard (U. of Louisville School of Law)

 Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism, Asad Rahim (American Bar Foundation)

The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. 

Comment and critique will be provided by the following scholars:

Bridget Crawford, Pace Law School

Jonathan Glater, UC Irvine Law School

Tristin Green, USF Law School

Angela Harris, UC Davis Law School

Jill Hasday, U. of Minnesota School of Law

Anthony Infanti, U. of Pittsburgh School of Law

Osamudia James, U. of Miami School of Law

Tom Joo, UC Davis Law School

Courtney Joslin, UC Davis Law School           

Angela Onwuachi-Willig, Boston U. Law School

Kimani Paul-Emile, Fordham U. School of Law

Leticia Saucedo, UC Davis Law School

We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.

 

Board Diversity In The News Again

Thanks to California, corporate board diversity or, more specifically, gender diversity, is in the news again. SB 826 which, according to news reports, Gov. Jerry Brown is expected to sign, passed the state Senate in a 23-9 vote and the Assembly in a 41-26 vote. The statute would require “publicly held domestic or foreign corporation[s] whose principal executive offices, according to the corporation’s SEC 10-K form, are located in California” to have a minimum of one female director on its board by the end of 2019. By the end of 2021, those numbers would increase for corporations with five directors, who would need to have a minimum of two female board members, and for corporations with six or more directors, who would need to have at least three female board members.

The bill provides the usual business case for board diversity, claiming that “publicly held companies perform better when women serve on their boards of directors.” The bill then goes on to cite as evidence a number of reports, including by MSCI and Credit Suisse, among others.

I have detailed at some length, both here, in a series of papers (co-authored with Lissa Broome and John Conley), in a piece for the NY Times, and in a recent public radio debate, why these studies that simply confirm the well-known correlation between board gender diversity and firm performance cannot be taken as evidence that gender diversity causes superior performance. This is more than just a recitation of the old “correlation doesn’t equal causation” argument. In this case there are strong empirical and theoretical reasons to believe that such a conclusion is premature.

As an empirical matter, although some peer-reviewed studies do show improved corporate performance (or other benefits, e.g. better compliance with legal mandates) from having more women on boards, others show no effect or even a negative effect. As a theoretical matter, there are other plausible explanations for the correlation. For example, better performing firms could have the luxury to focus on board diversity in a way that firms struggling to meet basic earning goals might not. In fact, this point was emphasized to us in a number of director interviews, including interviews with female and minority directors.

In addition, women and minority directors with the type of C-suite experience generally preferred for corporate boards are fairly scarce commodities who may have the luxury of choosing only the most profitable and least risky boards on which to serve. There are exceptions to this -- for example, financial and accounting expertise are in high demand, and many of our respondents told us that they thought this was an avenue by which more women might be included on boards. Moreover, we might question whether the qualifications demanded of directors do more to exclude women and minorities than they do to ensure director competency. These are valid and important questions, but don’t undercut the argument that women are drawn to profitable companies, rather than create profitable companies. Finally, both gender diversity and superior firm performance could be caused by some third factor – for example, a forward-looking management.

All of this is detailed in the articles that I will link to below. But, the point is that the evidence cited in SB 826 to justify intervention in the director selection process does not show what the bill and its supporters claim. In addition, as I discuss in Thursday’s radio interview, the bill has constitutional problems. The bill’s sponsors apparently recognize that quotas present an Equal Protection Clause problem yet argue that their proposal does not constitute a quota – a claim I contest in the interview. I expect discussion to increasingly focus on those issues if, as expected, the bill becomes law.

Including more women (and minorities) on corporate boards is a good thing. In all of our articles, Lissa, John, and I discuss a number of social goods that might emerge from having a more inclusive environment in the power structures of American corporations, including its boardrooms. For example, a focus on board diversity might encourage corporations (and search firms) to look outside of their usual networks for directors – networks in which women and minorities tend to be underrepresented. A diverse board might signal to consumers, employees, and other constituencies that their voices and views are represented in the highest reaches of American businesses. And one might simply argue that it is unfair that the (rather considerable) financial benefits that stem from directorships in many public corporations are not shared more equally by women and other underrepresented groups.

But we need to be realistic about what board diversity can and cannot accomplish, and more honest about what the evidence does and does not show. A failure to do so could well set back the cause of gender (and racial diversity) in the boardroom and, more importantly, in corporate management.

Comments to this post are closed, so if you want to talk to me about it find me on twitter @KimKrawiec.

Articles and book chapters about board diversity:

Diversity and Talent at the Top: Lessons From the Boardroom, in Diversity in Practice: Race, Gender, and Class in Legal and Professional Careers 37-80 (Spencer Headworth et al eds., 2016) (with John M. Conley & Lissa L. Broome)

A Difficult Conversation: Corporate Directors on Race and Gender, 26 Pace International Law Review 13-22 (2014) (with John M. Conley & Lissa L. Broome)

The Danger of Difference: Tensions in Directors’ Views of Corporate Board Diversity, 2013 University of Illinois Law Review 919-958 (2013) (with John M. Conley & Lissa L. Broome)

Dangerous Categories: Narratives of Corporate Board Diversity, 89 North Carolina Law Review 759-808 (2011) (with John M. Conley & Lissa L. Broome)

Does Critical Mass Matter? Views from the Board Room, 34 Seattle University Law Review 1049-1080 (2011) (with Lissa L. Broome & John M. Conley)

Narratives of Diversity in the Corporate Boardroom: What Corporate Insiders Say about Why Diversity Matters, in Discourse Perspectives on Organizational Communication 201-660 (2011) (with John M. Conley & Lissa L. Broome)

Signaling Through Board Diversity: Is Anyone Listening?, 77 University of Cincinnati Law Review 431-464 (2008) (with Lissa L. Broome)

 

In the media:

KQED Radio, debate with Betsy Berkhemer-Credaire, board member and past president, National Association of Women Business Owners of California, which sponsored SB 826

NY Times Room for Debate

Prior Faculty Lounge blog posts:

http://www.thefacultylounge.org/board-diversity/

The 1968 Fair Housing Act

Earlier this month marked the 50^thanniversary of the passage of the 1968 Fair Housing Act. On March 1, 1968, the Kerner Commission issued its report to Congress on race relations in the United States, warning that “America is dividing into two societies, black and white, separate and unequal.”  According to the Kerner Commission, one of the chief manifestations of this inequality was residential segregation, which relegated Blacks to crowded urban ghettoes. Congress responded to the Kerner Commission report with the 1968 Act, an attempt to reduce residential segregation and provide access to economic opportunities for people of color.  Despite the urgency of the report, the Act stalled in Congress until the assassination of Martin Luther King, Jr. sparked nationwide riots in inner cities. The Fair Housing Act is far-reaching.  Among other provisions, it requires the federal government to engage in affirmative action to integrate federally owned and subsidized housing.  Unfortunately, the Act’s anniversary passed with little fanfare.

Two provisions of the 1968 Fair Housing Act were based on Congress’ power to enforce the 13^thAmendment.  The first, the “Anti-Blockbusting Provision,” prohibits realtors from using race-based rumors to scare people into selling their homes at a reduced rate.  The second, the 1968 Hate Crimes Act, makes it a crime for a person to interfere in certain “federally protected activities,” including economic activities, on the basis of their race.  According to New York Senator Charles Goodell, “the 13th amendment to the Constitution forever barred slavery and involuntary servitude in the United States.  It was viewed by those who had approved it as abolishing not just enforced service of one person for another but as a guarantee to all citizens, of the outlawing of all the badges and incidents of slavery.  One hundred and three years after its adoption the Congress has yet to remove all the disabilities of that servitude.”  Like the 1866 Civil Rights Act before it, the 1968 Fair Housing Act addressed the badges and incidents of slavery.

Given the significance of the Fair Housing Act, it’s surprising how little acclaim the Act received on its April 11 anniversary.  On the other hand, the 1968 Fair Housing Act was controversial when it was enacted, and its wide-reaching mandate is largely unenforced.  According to one of the act’s sponsors, Walter Mondale, “The public servants tasked with implementing it have often forgotten — or refused to pursue — its ultimate goal of building an integrated society.”  Mondale points out that federal officials balked at enforcing the Act’s integration mandate until the Obama administration.  Now, the current Secretary of Housing and Urban Development, Ben Carson, referred to those Obama era regulations as “mandated social engineering.” 

Rather than celebrate the Act’s anniversary, Secretary Carson seems intent on undermining it.  For example, Secretary Carson recently removed anti-discrimination language from HUD’s mission statement.  As advocates for civil rights struggle to maintain hard won gains from the past 50 years, comprehensive measures like he 1968 Fair Housing Act seem sadly anachronistic.  However, 50 years after the Kerner commission report, little has improved.  Blacks experience unemployment at twice the rate as whites, and according to a recent study, our cities and schools are re-segregating.  Try as we might to ignore and deny it, people of color in our country are still suffering from the badges and incidents of slavery.

Call for Papers: Upcoming Conference on Cooper v. Aaron

Below is a call for papers for an upcoming conference at the University of Arkansas - Little Rock William H. Bowen School of Law.  According to Associate Dean Terri Beiner, "we hope to have some Constitutional Law professors focus on Cooper in the context in which the case came down as well as professors who will look at its contemporary implications. The symposium will also include as well a panel of people in the community who were present during and participated in the events as they unfolded."  This is sure to be a great conference!

Call for Papers 

University of Arkansas at Little Rock Law Review 

The Vitality of Cooper v. Aaron after 60 Years 

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law is pleased to announce a call for papers for its 2018 Symposium. “Cooper v. Aaron: Still Timely at Sixty Years,” to be held on Friday, September 28, 2018.  

Sixty years ago, the United States was roiled by the struggle to overcome racial segregation. John and Thelma Aaron and others filed suit in federal court in Arkansas for the purpose of integrating Arkansas schools subsequent to Brown v. Board of Education. This lawsuit led to a federal court order to integrate the Little Rock public schools and the subsequent turmoil surrounding the attendance of Central High by the Little Rock Nine. 

The state government continued to resist desegregation, however. The Little Rock School Board sought to postpone implementation of its citywide school desegregation plan for almost three years because of public opposition. Ultimately, the case reached the United State Supreme Court, which met in special session for only the third time in its history, in August and September 1958 to hear oral argument. The unanimous per curiam opinion of the court in Cooper v. Aaron held that state government officials could not suspend their desegregation efforts in the face of violent opposition because defying the Brown decision was tantamount to breaking their oaths to uphold the Constitution.  

Cooper resoundingly established the supremacy of the federal constitution but it also established the more controversial notion of the supremacy of the Supreme Court in interpreting the Constitution. 

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law is proud to present a symposium on the significance of Cooper v. Aaron on its sixtieth anniversary. The issues raised by Cooper are still the subject of vibrant debate. Increasingly, state and local officials seek to avoid enforcing or following federal mandates ranging from the Obergerfell same sex marriage decision to the Affordable Care Act’s individual mandate to enforcing immigration law. We seek articles on these and other topics as well as articles on the local significance of Cooper and its continuing vitality in an age of political and legal polarization.  

The Law Review of the University of Arkansas at Little Rock William H. Bowen School of Law will publish articles from the symposium in an issue of volume 41 slated for release in the spring of 2019. We encourage all interested potential authors to respond. Authors should submit an abstract and a cover letter to Shelby Howlett, Symposium Editor, at snhowlett@ualr.edu. The deadline for submissions for article proposals is May 31, 2018; completed articles will be due on November 30, 2018. Please feel free to email Ms. Howlett with any questions. 

Striking teachers and the First Amendment

Public Workers have been in the news again in recent days.  Celebrating the fiftieth anniversary of the assassination of Dr. Martin Luther King Jr., we recall that Dr. King was in Memphis to support striking sanitation workers. King joined the sanitation workers to protest both their economic deprivation and race discrimination by Memphis city officials.  In the present day, teachers on strike are engaging in mass demonstrations in Oklahoma, inspired by the strike of their West Virginia colleagues last month.  Oklahoma teachers are not only protesting their low salaries.  They also criticize draconian cuts in education which have led to four-day school weeks in some parts of the state, and the use of 30-year old textbooks.  These are all examples of public workers exercising their First Amendment rights, which have been fiercely contested in this country since the early twentieth century.

Looming over the teacher strikes is the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31.  Janus is a First Amendment based challenged to an Illinois state law which requires public employees to pay union dues to unions that represent them.  Janus argues that paying the dues amounts to unconstitutionally compelled speech.  He is asking the Court to overrule a 40-year old precedent, Abood v. Detroit, which upheld the constitutionality of a similar state law.  Most commentators believe that the Court will rule in the plaintiff’s favor in Janus, resulting in a ruling which would strike a blow to organized labor and devastate public sector unions. Janus, the two faced Roman god of duality, is an apt name for this case.  A ruling in Janus’s favor would use the First Amendment, once the mainstay of advocates for workers’ rights, to undermine the labor rights of workers.

In her recent book, The Taming of Free Speech: America’s Civil Liberties Compromise, Laura Weinrib describes the central role that the labor movement played in the civil liberties revolution of the mid 20^thCentury.  Established in 1920, originally the ACLU's central mission was to advance a “right of agitation” and protect the labor movement’s right to free speech and free assembly.  Initially, Roger Baldwin, the first ACLU director, was hesitant to raise First Amendment claims in courts.  At the time, courts were hostile to the rights of workers, striking down progressive measures protecting workers rights as violating the so-called “right to contract” and issuing injunctions against striking workers. 

Prior to the 1930s, labor asserted its right to agitation in the political arena, not the courts. Millions of workers took to the street in massive strikes, asserting their right to organize and bargain collectively.  Labor’s distrust of courts is evident in the Norris-LaGuardia Act, which prohibit courts from issuing injunctions in cases involving disputes between labor and management.  According to Weinrib, leaders of the ACLU agreed with labor that the Norris-LaGuardia Act was a crucial civil liberties victory.

In the 1930s, however, the Supreme Court backed away from Lochner, rejecting its right to contract jurisprudence.  Congress also rejected Lochnerand embraced a collective right to contract when enacting the National Labor Relations Act.  In the 1937 case of NLRB v. Jones, the Court upheld the constitutionality of the NLRA.  Pro-labor court rulings began to seem possible. In the 1939 case of Hague v. CIO, the Court held that labor activists had a First Amendment right to freedom of speech and assembly in public spaces.  Hague arguably marks the high-water point of the First Amendment rights of union workers.

Even as labor celebrated the NLRA and Hague, the National Association of Manufacturers and the Liberty League began to formulate an alternative use of the First Amendment to undermine unions.  They formed the “right to work” movement, arguing that workers had a constitutional right not to join a union.  In The Workplace Constitution: From the New Deal to the New Right, Sophia Lee outlines how the right to work campaign raised First Amendment claims against agency fees, laying the groundwork for Janus.  Katherine Fisk has argued that a ruling for the plaintiffs in Janus would revive Lochner, based in the same reasoning that labor resisted with their right of agitation.  A century after the progressive movement resisted court rulings against workers’ rights, a Janus-like Court is using the First Amendment to quell the rights of union workers.

Importantly, teachers in West Virginia, Oklahoma and Arizona would not be affected by the Janus ruling.  They already live in states which prohibit government workers, including teachers, from engaging in collective bargaining and going on strike. In those states, the teachers’ only means of bargaining is political pressure on the state legislatures, which set the terms of their employment.   If the Court rules as expected in Janus, public sector workers in every state will be in the same boat as the teachers in West Virginia and Oklahoma.  The mass protests in those states are reminiscent of those of workers in the 1930s who demanded a right to organize in unions.  Will Janus thus ironically inspire more 
political activism by public workers? 

 

MLK

Wednesday, April 4 marks a half century since the assassination of the Rev. Dr. Martin Luther King Jr. at the Lorraine Motel in Memphis, Tennessee.  

In the pantheon of American heroes, King stands alongside George Washington and Abraham Lincoln as one of the most iconic and important leaders in the nation's history. Just as Washington helped establish the new nation and Lincoln helped hold the Union together during a devastating civil war, King articulated a vision of what the nation could, should and must be—a diverse and inclusive republic committed to liberty, equality, opportunity, and justice for all. Although it is self-evident that the United States has still fallen far short of achieving his vision, King's monumental “I Have a Dream Speech,” delivered on the National Mall in August 1963, remains the defining speech of modern American history.

Amazingly, King was only 39 at the time of his death. To put that in context, King was four years younger than Washington when he took command of the Continental Army in 1775 and 13 years younger than Lincoln when he became president in 1861. Moreover, King first emerged as a leader of national importance at age 26, when he helped lead the Montgomery Bus Boycott in December 1955. Thus, between the ages of 26 and 39—a time when the vast majority of people are only beginning to find their way in the world—King challenged the racial and class hierarchy of American life and in the process helped redefine the meaning of the American Dream. 

Diversity and Inclusion in The March For Our Lives

This past weekend, hundreds of thousands of people participated in the March for Our Lives in Washington, DC, and demonstrations throughout the country.  One of the things that impressed me the most about the kids who spoke at the march in Washington was the spirit of diversity and empathy that infused the entire demonstration.  Real diversity requires not only the inclusion of people who are different, but also an acknowledgement of difference, an attempt to understand those differences, and empathy towards the experience of others.  Perhaps the most remarkable thing about the kids from the Marjory Stoneman Douglas school in Parkland, Florida is their willingness to reach out to kids who are different from themselves and include them in their cause.

The Parkland kids experienced an unspeakable tragedy when a lone gunman shot and killed 17 people; their classmates, friends and teachers.  At the March For Our Lives, they spoke about the horrors that they had experienced, and decried the lack of safety in schools throughout the country.  The most striking tribute was that of Emma Gonzalez, with her dramatic four minutes of silence.  Along with representatives from Newtown, Connecticut, the kids from Parkland spoke for the 187,000 children in our country who have been directly involved in mass shootings in schools. 

However, the Parkland kids were not the only speakers at the demonstration.  Shortly after the February 14 Parkland shooting, student leaders from Parkland traveled to Chicago to talk to other teenagers who have been traumatized by gun violence.  They learned about the millions of children, primarily children of color, who are threatened by gun violence every day of their lives.  Some of the people that they met also spoke to the crowd at the Washington march.  Speakers included kids from inner city neighborhoods including Chicago, South Central Los Angeles, Washington and Baltimore.  Those speakers represented the millions of people who have spent their entire lives in constant fear of gun violence in their neighborhoods, and the children who experience daily fear and trauma.

Almost all of the speakers had one thing in common; they had been directly affected by gun violence.  The speakers from Parkland and Newtown had been in school during a terrifying mass shooting.  All of them had directly experienced that trauma, and lost friends, family members and teachers.  The other speakers had also lost loved ones to gun violence.  Their brothers, sisters, and nephews had been gunned down on city streets.  Zion Kelly, from Washington, DC, told the crowd about losing his twin brother last fall when an armed robber shot and killed him.  Edna Chavez, from South Central Los Angeles, described watching her brother shot and killed on the streets of her neighborhood.  Chavez explained that gun violence was a normal part of her life, that she had learned to dodge bullets before she learned to read. 

All of the speakers at the march were 18 years old or under.  They emphasized their tragic commonality, but they also talked about the real differences in their lives.  Though they had tragedy in common, these kids came from different backgrounds and income levels.  The kids from the Marjory Stoneman Douglas school in Parkland, Florida are largely white and relatively affluent.   The other speakers were children of color who live in relatively poor neighborhoods that are plagued by crime and violence.  The speakers acknowledged their differences.  For example, Parkland student David Hogg admitted that his white privilege was one of the reasons that the Parkland kids have gotten so much national attention.  They have consciously used their notoriety to provide a platform for the other speakers who do not regularly grab headlines.  Those students added to the debate over how to address gun violence with their personal experiences.  For example, Edna Chavez explained why arming teachers is an inadequate solution for kids of color who are already being treated like criminals in school. 

In our increasingly diverse world, it is a challenge to communicate effectively people who are different from ourselves.  The teenagers at the March For Our Lives talked easily and openly about their differences, and more importantly, they listened.  In this movement marked by intersectionality, they are trying to come up with a solution to gun violence that is informed by all of their experiences.  Whatever happens with their campaign to end gun violence, the Parkland kids and their allies have taught all of us a lesson on how to be truly diverse, inclusive, and empathetic.  In the words of the band The Who, The Kids Are Alright.