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  • Trajectory of a Law Professor

    Women of color are already severely underrepresented in legal academia; as enrollment drops and legal institutions constrict further, race and gender disparities will likely continue to grow. Yet, as many deans and associate deans, most of whom are white, step down from leadership positions during these tumultuous times in legal education, opportunities have arisen for women of color to fill those roles in record numbers. However, there are individual and structural barriers preventing access to the leadership level. Significant hurdles have long prevented women of color from entering law teaching. Thus, this Article provides evidence to support the thesis that ongoing changes in legal education will likely continue to create barriers both to entry and advancement for women of color law faculty members and those who aspire to join legal academia. This Article draws from quantitative and qualitative analyses of data drawn from the Diversity in Legal Academia (DLA) project, a landmark mixed-method study of law faculty diversity, which utilizes an intersectional lens to focus on the experiences of women of color in legal academia while also incorporating those of white men, white women, and men of color. Empirical findings reveal that structural barriers (i.e., outright discrimination) as well as more indirect obstacles prevent women of color from joining legal academia in meaningful numbers and also preclude women of color who are already legal academics from taking on leadership positions. Law school administrators and policy makers should work against these structural and individual barriers to increase and improve faculty diversity at all levels. Greater diversity in legal academia generally, and leadership in particular, will not only provide greater opportunities for particular law faculty members, but will also have a positive effect on law students, legal education, legal academia, and the legal profession overall.

  • The Keyes to Reclaiming the Racial History of the Roberts Court

    This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States— legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity. The Article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black- White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer accurately describe the current reality of shifting and transforming patterns of race relations in the United States. In order to reclaim the history of race from the Roberts Court, the Article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first Supreme Court case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyes and the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.

  • Justice and Law Journals

    What is the role for a law journal in advancing justice? What is the role of a justice-minded practitioner in furthering legal scholarship? And what is the intersection—practically and normatively—for law journals, legal scholars, practitioners, and justice? This brief Article attempts to lay a foundation for answering these important, but oft-neglected, questions. In the following conversation, a frequent contributor to the Michigan Journal of Race & Law (MJRL) and a former Editor-in-Chief of the Journal posit some ideas on how legal scholarship engages with justice, and how race-conscious practitioners can interact with race-conscious legal scholars.

  • Habermas, the Public Sphere, and the Creation of a Racial Counterpublic

    In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings allowed the bourgeoisie to use their reason to determine the boundaries of public and private and to self-consciously develop the public sphere. As Habermas writes, “[t]he medium of this political confrontation was . . . people’s public use of their reason.” The bourgeois public didn’t simply participate, but it did so both directly and critically. The development of the bourgeois public as a critical, intellectual public took place in coffeehouses, in salons, and table societies. In Great Britain, Germany, and France, particularly, the coffeehouses and the salons “were centers of criticism—literary at first, then also political—in which began to emerge, between aristocratic society and bourgeois intellectuals, a certain parity of the educated.” Intellectual equals came together and deliberated, an equality that was key in ensuring the requisite openness and deliberation. No one person dominated the discussion due to his status within the deliberative community. Instead, and above all else, the “power of the better argument” won out. Two conditions were critical to these deliberations. First, equality was key to the public sphere. Membership in the public sphere meant that no one person was above the other and all arguments were similarly treated and scrutinized. Second, the principle of universal access was crucial.8The doors of the deliberative space were open to all comers and no group or person was purposefully shut out. Seen together, these two conditions provide a blueprint for deliberative practices in a democratic society.

  • Breastfeeding on a Nickel and a Dime: Why the Affordable Care Act’s Nursing Mothers Amendment Won’t Help Low-Wage Workers

    As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns to employers to determine the details of the accommodation provided, make it likely that class- and race-inflected attitudes towards both breastfeeding and women’s roles will influence employer (and possibly judicial) decisions in this area. Examining psychological studies of popular attitudes towards breastfeeding, as well as the history of women’s relationships to work, this Article concludes that both are likely to negatively affect low-income women seeking accommodation under the Act, perhaps especially those who are African-American. In short, the new law could lead to a two-tiered system of breastfeeding access, encouraging employers to grant generous accommodations to economically privileged women and increasing the social pressure on low-income women to breastfeed, without meaningfully improving the latter group’s ability to do so.

  • Coercive Assimilationism: The Perils of Muslim Women’s Identity Performance in the Workplace

    Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and antidiscrimination literature, this Article argues that in order for courts to keep up with discrimination they should expansively interpret Title VII to address identity-based discrimination rooted in negative implicit stereotypes of low status groups. In doing so, the Article brings to the forefront Muslim women’s identity performance at the intersection of religion, race, gender, and ethnicity—a topic marginalized in the performativity literature. I argue that Muslim female employees at the intersection of conflicting stereotypes and contradictory identity performance pressures associated with gender, race, and religion are caught in a triple bind that leaves them worse off irrespective of their efforts to accommodate or reject coercive assimilationism at work.

  • The Right to Free Exercise of Religion in Prisons: How Courts Should Determine Sincerity of Religious Belief Under RLUIPA

    Religion plays a vital role in the daily lives of many prisoners. For incarcerated persons, a connection to the divine can provide comfort during periods of isolation from their family and community. From a policy perspective, spiritual development and religious practice promote rehabilitation and reduce recidivism in inmates. While prisoners forfeit many of their civil liberties, Congress has ensured that religious exercise is not among them. As Congress enhanced religious freedom protections for prisoners, prison facilities became increasingly concerned that prisoners would feign religiosity to gain certain religious accommodations. To counter this concern, prison facilities conditioned accommodations on the sincerity of an inmate’s religious belief. Some facilities, however, instituted problematic methods for determining sincerity of religious belief, such as requiring physical evidence of doctrinal adherence or removing lapsing prisoners from religious accommodations.

  • How Critical Race Theory Marginalizes the African American Christian Tradition

    This Article offers the first comprehensive account of the marginalization of the African American Christian tradition in the movement of race and law scholarship known as critical race theory. While committed to grounding itself in the perspectives of communities of color, critical race theory has virtually ignored the significance of the fact that the civil rights movement came out of the Black church and that today more than eighty percent of African Americans self-identify as Christian. In practical terms, critical race theory’s neglect of the Christian tradition has meant that arguments developed in race and law scholarship are sometimes incompatible with the deeply religious normative frameworks that many Black Americans bring to bear on issues of law and justice. As a result, there is a significant disconnect between race and law scholarship and the comprehensive normative commitments of the community whose concerns that scholarship seeks to address. By offering the first comprehensive account of this disconnect, this Article supplies an important foundation for scholars who wish to close the gap between race and law scholarship and the larger African American community.

  • States Taking Charge: Examining the Role of Race, Party Affliation, and Preemption in the Development of in-state tuition laws for undocumented immigrant students

    Part I of this Article details both the legislative and legal history of undocumented immigrants’ access to education in the United States. Part II then describes the current U.S. state laws in effect regarding in-state tuition for undocumented immigrant students at state-funded colleges and universities. Part III further explores the development of laws and policies with a keen focus on potential correlations between (1) the racial composition of state legislatures and the passage of in-state tuition policies; (2) the race of governors and the passage of in-state tuition policies; (3) partisan composition of state legislatures and the passage of in-state tuition policies; and (4) party affiliation of governors and in-state tuition policies. Part IV describes the concept of preemption and discusses the extent to which preemption has impacted the state statutes identified in Part II of this Article. Finally, Part V discusses the practical and normative implications of this research.

  • The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings

    The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of over-sight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive— consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.