A new generation of social science research creates new opportunities to increase fairness and reduce racial inequality in education. This research raises important questions for antidiscrimination law.
Over the past twenty years, research conducted around the world has established that for students subject to pervasive negative intellectual stereotypes, such as African American and Latino students (and many other groups, including, in math and science, girls and women), school contexts that call to mind these stereotypes can produce distraction and anxiety that impede school achievement and contribute to racial disparities. This “stereotype threat” is the default in evaluative, challenging academic environments. Hence, common measures of intellectual ability typically underestimate minority students’ potential. But stereotype threat is not inevitable. Brief exercises can reduce its effects, causing lasting improvements in minority student achievement.
When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.
In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.
Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”
On March 27, 1968, Reverend Martin Luther King, Jr., exhausted by a day of antipoverty rallies in New Jersey, and frustrated by the Southern Christian Leadership Conference’s poverty campaign in Washington, D.C. and Memphis, Tennessee declared: “We may be integrating into a burning house.” The story of the failed integration of America’s “burning house”–its schools, neighborhoods, and workplaces–begins for many with the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education. Fifty-six years later, on March 8, 2010, at the Edmund Pettus Bridge in Selma, Alabama, U.S. Department of Education Secretary Arne Duncan invoked both King and Brown in announcing the renewed commitment of the department to civil rights enforcement in schools across America. Standing at the historic site of Bloody Sunday in Selma, a critical battle ground in the civil rights movement, Duncan outlined a series of new enforcement initiatives–guidance letters, compliance reviews, data collection, and monitoring–intended to redress school-based inequities in urban communities of color. Espousing “the cause of equal educational opportunity,” he asked: “How do we maximize freedom and opportunity in schools and communities where low-income black and brown children, and students with disabilities, still are treated unequally?”
Duncan’s modern invocation of Brown, his commitment to educational opportunity and racial justice in new contexts of inequality, and his search for alternative pathways to ensure community equity invites a contemporary reassessment of Brown in America’s inner-city public schools and impoverished neighborhoods. Martha Minow’s superb new book, In Brown’s Wake: Legacies of America’s Educational Landmark, presents a sweeping appraisal of the landmark status and mixed legacy of Brown in the field of public education, here and abroad. The dean of Harvard Law School and an international leader in law reform and educational policy, Minow embraces Brown as an enduring, fruitful resource for civic reformers engaged in law, social science, and social justice movements. Her purpose in revisiting Brown stems from an academic and activist sense of dismay over the bleak tenor of the fiftieth anniversary celebration of that ground-breaking decision in public and scholarly discourse, a widely circulated discourse that “stressed the failures of the decision.” To her credit, Minow offers In Brown’s Wake as a useful corrective, duly acknowledging her own “disappointments” in Brown and its legal-political progeny while exploring its “unexpected legacies” for the nation and the international community.
Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”
Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage—Perez v. Sharp, decided by the California Supreme Court in 1948—was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.
The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.
The unconscionable delay in the disposition of appeals and habeas corpus proceedings filed on behalf of California’s death row inmates continues to increase at an alarming rate. It is now almost double the national average. Procedural changes must be made to the manner in which death penalty judgments are reviewed to avoid imprisoning a death penalty inmate for decades before the condemned prisoner’s constitutional claims are finally resolved.
This Article identifies the woeful inefficiencies of the current procedures that have led to inexcusable delays in arriving at just results in death penalty cases and describes how California came to find itself in this untenable condition. It also recommends structural and procedural changes designed to reduce delay and promote fairness. These recommendations include: transferring exclusive jurisdiction over automatic appeals from judgments of death away from the California Supreme Court to the California Courts of Appeal; requiring that capital case state habeas corpus petitions be filed in the trial court with the right to appeal to the California Courts of Appeal, rather than filing the petitions with the Supreme Court in the first instance; providing adequate training and compensation for counsel appointed to represent indigent death row inmates; and providing continuity of counsel for state and federal habeas corpus proceedings. These changes would significantly reduce delay and promote a more just resolution for death penalty inmates and society.
Despite over a quarter century of affirmative action policy, public endorsement of the practice by leading American institutions, and validation by the United States Supreme Court, the relevance of race in university admissions and hiring decisions remains a persistent source of conflict. Disagreement, however, has not produced a particularly robust or constructive public dialogue on this issue. Indeed, public conversation regarding the appropriateness of race preferences remains mired in an unhealthy and unproductive impasse.
Understanding Title VII law has never been easy. From the beginning, there have been sharp disputes about the meaning of “discrimination” under the Act and the degree to which employers should be held strictly accountable for discriminatory actions of supervisors and employees. Early debates tended to pit those who envisioned the Act as a results-oriented measure aimed at ending racial and gender hierarchies in the workplace against those who viewed the legislation primarily as a process-oriented check against the use of race or gender as a factor in employer decisionmaking. The former generally endorsed a broad interpretation of the Act generous to plaintiffs, while the latter tended to be more receptive to interpretations favoring employers.
The fault lines in contemporary scholarship are much harder to characterize. Contemporary doctrinal debates have tended to focus narrowly on particular statutory provisions or modes of proof, and emerging theories do not always line up as predictably along ideological lines. The interplay between Congress and the Supreme Court has only made things messier: On several occasions, Congress has stepped in to express its disapproval of conservative Court rulings, without, however, dramatically changing the prevailing judicial approach to interpreting the Act. The last major statutory revision was the 1991 Civil Rights Act, a sweeping reform that affected each major framework of liability, introduced jury trials, and significantly altered the remedial scheme of the Act.
Communicating ethnic animosity through humor has long been an American tradition. As early as the seventeenth century, Americans have utilized racial jokes to ridicule the culture, dialect, dress, and traditions of each new wave of immigrants. Images of “little black Sambo,” “the drunken Irishman,” and “the stupid Pole” have helped to define which ethnic groups are accepted and which remain on the fringe of society. Although racial jokes convey a wide variety of messages ranging from friendly teasing to flagrant racism, when channeling racism and hostility they comprise one of the greatest weapons in the “repertory of the human mind.” Furthermore, while many dismiss jokes as a nonserious form of communication, racial jokes historically have played an important role in the development of American race relations.