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  • Regulating Target Marketing and Other Race-Based Advertising Practices

    Recognizing the significant role that advertising plays in American life, this article examines the phenomenon of race-based targeted marketing as a contributing factor to the racial tension of our media age and evaluates the role of government regulation in preventing the dissemination of racist messages through advertising. In Part I, the article first looks at the evolution of "mass" marketing into today's standard use of targeted marketing techniques, and especially how those techniques can sometimes have racist effects. In Part II, the article discusses both measurable and esoteric harms of cultural racism. Part III examines existing laws designed to regulate advertising generally and specific laws that reach discriminatory advertising for particular products and services. Part IV specifically analyzes the Federal Trade Commission's existing authority to regulate unfairness in advertising as it might be used to prevent advertising with racist effects. Finally, recognizing the difficulty of governmental intervention in the marketplace, this article suggests guidelines for use by advertisers who affirmatively wish to avoid advertising practices that cause racist harms.

  • Locked in Inequality: The Persistence of Discrimination

    In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.

  • “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making

    This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.

  • Strategic Voting and African-Americans: True Vote, True Representation, True Power for the Black Community

    As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

  • Bête Noire: How Race-Based Policing Threatens National Security

    This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior citizens. This, in turn, may actualize a catalyst of cooperative opportunity and vulnerability for those who seek to injure the United States, its institutions, and its people.

  • Not Because They are Brown, But Because of Ea*: Why the Good Guys Lost in Rice V. Cayetano, and Why They Didn’t Have to Lose

    Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

  • The Promise of a Post-Genocide Constitution: Healing Rwandan Spirit Injuries

    This Article hopes to extend Critical Race Theory's social construction of race theory by emphasizing ethnicity as well as race. The Rwandans are undoubtedly within the so-called "Black race." Historically, they have also been socially constructed as consisting of different races and ethnicities, even though many scholars and Rwandans do not see ethnic, much less racial, distinctions. Some of these Rwandans who did see such differences participated in the genocide.

  • Redefining American Democracy: Do Alternative Voting Systems Capture the True Meaning of “Representation”?

    This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how it is attained to secure the people's consent then is taken up in Part IV, providing some insight into the extent to which departures from majority rule are consistent with the American conception of representation. This discussion leads into Part V, which evaluates the role of our two-party system and ascertains whether proportional models of representation can cure the perceived defects of winner-take-all elections without undermining the continued stability of our Republic.

  • The State Judiciary’s Role in Fulfilling Brown’s Promise

    After a brief overview of school finance litigation since Rodriguez and school desegregation cases since Brown, Part I argues that the "adequacy" model of reform addresses many of the underlying concerns of the equity model without sharing its methodological and strategic shortcomings. Part II focuses in more detail on Campaign for Fiscal Equity v. State ("CFE"). Part III argues that education reform that is implemented after a finding that a state has violated a state constitutional duty should: (1) equalize funding to the extent necessary to guarantee certain minimum necessary inputs such as qualified teachers, small class sizes, adequate physical infrastructure, and other instrumentalities of learning; and (2) take seriously Brown's proclamation that racial separation is inherently unequal. Part IV encourages courts to structure education reform remedies that: (1) envision a firm but limited judicial role to protect the constitutional rights of minorities from majoritarian failures without exceeding the courts' limited expertise and authority; (2) define adequacy specifically enough to minimize inter-branch tension and provide political cover for legislators who must make difficult decisions to implement education reform; and (3) prioritize collaborative decision-making involving courts, legislatures, state agencies, local school boards, unions, parents, local businesses, and civic organizations, partially through a process analogous to negotiated rulemaking in the administrative law context. Part V borrows several elements from environmental law and proposes a method for implementing education reform that makes state legislatures ultimately accountable for educational outcomes. Finally, Part VI explores some of the daunting challenges faced by education reform efforts and suggests that rigid ex ante injunctions may fail to account for the wide range of obstacles faced by school districts.

  • Conscious Use of Race as a Voluntary Means to Educational Ends in Elementary and Secondary Education: A Legal Argument Derived From Recent Judicial Decisions

    This paper provides an in-depth examination of the ten recent court decisions concerning race-based student selection processes. As these cases will illustrate, school districts face increasing demands to justify any race-conscious selection process. The significance of meeting the demands and the implications for what appears to be an evolving legal theory is national in scope and broad in application. Some have even argued that some of these cases mark a departure away from the Court's thinking in Brown v. the Board of Education. It should also be noted that each of the cases mentioned above occurred in the context of some form of school choice, which heightens the significance of the research and the implications of its findings.