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  • From Discourse to Struggle: A New Direction in Critical Race Theory

    To commemorate the Michigan Journal of Race & Law's tenth anniversary, they hosted a symposium in February 2005 that marked a shift within critical race theory. Entitled "Going Back to Class?: The Reemergence of Class in Critical Race Theory," the symposium brought together speakers, students, Journal alumni, and members of the community to begin a fuller examination of the relationship between race and class.

  • Race and Class in Political Science

    As a discipline, political science tends to have a split personality on the issue of whether the driving force behind political action is material or ideational. Put too crudely, White scholars tend to focus on structural conditions as the cause of group identity and action, whereas scholars of color tend to focus on group identity and conflict in order to explain structural conditions. More generally, the relevant debate within political science revolves less around Jacques Demrda versus Karl Marx (as in critical race studies) than around W. E. B. DuBois versus Thomas Hobbes-that is, whether "the problem of the twentieth [and other] centur[ies] is the problem of the color line" or whether people are fundamentally se/f-interested individualists whose social interaction is shaped by the opportunities presented in a given political structure. This Essay examines those propositions by discussing important recent work by political scientists in several arenas, including ethnic conflict, nationalism, and a belief in linked fate. It then briefly discusses the author’s own research on the relationship between race and class, and on the possible malleability of racial and ethnic concepts and practices, in order to show one way that identity-based and interest-based political analyses interact. The author concludes that material forces drive most important political disputes and outcomes, but that politics is best understood through a combination of material and ideational lenses.

  • Reparations Talk in College

    Review of Uncivil Wars: The Controversy Over Reparations for Slavery by David Horowitz

  • Decline of Title VII Disparate Impact: The Role of the 1991 Civil Rights Act and the Ideologies of Federal Judges

    This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood that such plaintiffs will successfully challenge facially-neutral employment practices. Two significant observations may be gleaned from Part II: first, that the ideologies of judges on the appellate panels deciding Title VII cases exert a far more significant impact on case outcomes in the post-1991 period; and, next, that one important explanation for the decline of successful disparate impact claims is that politically conservative judges decide a greater percentage of recent cases. Based on these findings, Part III argues that Congressional action to clarify disparate impact standards is essential to preserve Title VII as a conduit through which African Americans can seek redress for discrimination.

  • After Georgia V. Ashcroft: The Primacy of Proportionality

    This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. In Shirt, American Indians in South Dakota suffered a history of voting discrimination, racially polarized voting, and a dearth of safe districts; while in Session, Blacks and Latinos in Texas at least possessed a larger proportion of safe districts. What emerges from the comparison, then, is the tendency of proportionality to neutralize history and polarization. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations—details closely related to how proportionality is measured. Finally, Part III discusses substantive representation, the ideology that drove much of Ashcroft's analysis. Framing it as a symptom of nonpolarized voting, this Note concludes that endorsement of substantive representation as a device to achieve colorblindness will obscure the causes of polarization.

  • The Plight of “Nappy-Headed” Indians: The Role of Tribal Sovereignty in the Systematic Discrimination Against Black Freedmen by the Federal Government and Native American Tribes

    This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations between Native Americans and Freedmen. Part III discusses the roles that Congress, executive agencies, and the courts must take to halt and reverse the discriminatory practices that have stripped Freedmen of their rights and privileges as members of Native American communities.

  • Individual Aboriginal Rights

    This Article will, in Section I, deal with the legal development of the concept of individual aboriginal rights. It will focus on the Western Shoshone land claims before the Indian Claims Commission, and the federal government's trespass claims against the ranching operations of the redoubtable, irrepressible Dann sisters. Section II will explore the development and utilization of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession of or access to sacred sites. Section III will explore some related concepts in western public land law. This Section suggests that custom, prescription, access under nineteenth century self-executing right of way statutes, regulatory efforts, and administrative accommodation have provided at least some protection for the access of tribal peoples to sacred sites. Section IV will speculate about the future expansion of such efforts, and explore the possibility that the growth of colorblind equal protection doctrine will spread into the area of Indian law and threaten what Charles Wilkinson has called the "measured separatism" of tribal sovereignty and property.

  • Disposable Mothers, Deployable Children

    Review of Interracial IntimaciesL Sex, Marriage, Identity, and Adoption by Randall Kennedy

  • Fair and Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis

    Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher education context, be fashioned such that admissions policies are made as equitable as possible while not undermining a school's ability to achieve its legitimate admissions goals. The proper necessity standard would grant schools latitude to define their institutional goals, but at the same time require that their admissions criteria be the least discriminatory methods of achieving these goals. Finally, Part III shows that a court can feasibly and effectively apply disparate impact analysis to admissions processes despite their complexity and variety.

  • Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not

    Part I of this Note describes the substance of prison grooming policies and provides a sampling of cases that have challenged these policies under the Equal Protection and Free Exercise Clauses. Part II explores three theories of discrimination that describe certain types of discriminatory conduct that could be prohibited by the Equal Protection and Free Exercise Clauses. These theories inform the definition of "equal protection of the laws" and impact the analysis of equal protection challenges to prison grooming policies. Part III explores the "religious exemptions" doctrine and explains how courts have interpreted the protections offered to religious groups by the Free Exercise Clause. This Part also explores the ways in which the development of the Free Exercise Clause has mirrored the development of the Equal Protection Clause and argues that these similarities justify a similar analysis of challenges to prison grooming policies brought under either theory. Part IV analyzes prison grooming policies by interpreting the constitutional provisions to prohibit oppressive discriminatory conduct directed at minority group members. Part V concludes this Note by arguing that adoption of an anti-oppression theory of discrimination in the analysis of Free Exercise and Equal Protection claims requires courts to strike down prison grooming policies.