Article: Khiara M. Bridges, Class-Based Affirmative Action, or the Lies That We Tell About the Insignificance of Race, 96 Boston L. Rev. 55 (2016).
This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals—and groups—continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it denies that race matters, has mattered, and probably will continue to matter unless we make conscious efforts to make race matter less.
The Article proceeds in two Parts. Part I locates class-based affirmative action doctrinally. Specifically, this Part identifies class-based affirmative action as the heir of the “suspect class” to “suspect classification” shift—a shift that tells its own lie about race. The substance of this lie is that those who exist at the top of racial hierarchies are as vulnerable to denigration, stigmatization, and subordination on account of race as are those who exist at the bottom of racial hierarchies. Part II goes on to demonstrate that class-based affirmative action suffers from the same infirmities from which race-based affirmative action is charged to suffer. It argues that the reason why proponents of class-based affirmative action are sanguine about these infirmities when they are present in class-based programs, but loathe them when they are present in race-based programs, is because their opposition to race-based affirmative action is not due to these infirmities. Rather, it is due to their disdain of the work that race-based affirmative action performs. That is, race-based programs function to assert, loudly, that race still matters and does so in powerful ways. Many proponents of class-based affirmative action resist this function.
Moreover, class-based affirmative action functions to assert that we, as a society, have entered a post-racial future. That is, class-based affirmative action tells a lie about the insignificance of race. Many proponents of class-based programs likely find these programs attractive and comforting for that very reason. The importance of this Article is that it uncovers the narrative work that class-based affirmative action performs, and it argues that those who are interested in racial justice ought to resist these programs because of their dangerous discursive effects.
Article: Gregory R. Day & Salvatore J. Russo, Poverty and the Hidden Effects of Sex Discrimination: An Empirical Study of Inequality, 37 Penn. J. Int’l L. 1183 (2016).
Sexist laws are more prevalent in regions where poverty is endemic. The corollary is true as well: the places where women tend to experience better treatment are typically more highly developed. The legal academy has drawn several inferences from this observation, including the observations that poverty and the development process appear to be detrimental to women’s rights. But despite the strength of this relationship, few legal studies seek to understand precisely why gender inequality seems to be inextricably linked to poverty.
Our research finds the opposite of what is generally assumed: the act of depriving women of fundamental rights is the very cause of underdevelopment. First, using a law and economic approach, sexist laws appear to create perverse behavioral incentives whereby actors rationally engage in inefficient behaviors. This is because sexist laws, in contrast to other forms of discrimination, burden society’s basic economic unit—the family. For instance, regions that prohibit women from earning a wage depress the rate of investment since single-income families must approach the market overcautiously. These deductions are then supported by an original empirical analysis, which indicates that gender inequality and poverty are significantly and powerfully connected. Sexist laws are thus less the result of underdevelopment as much as its very cause.
Article: Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in Motor City, 23 Georgetown J. Poverty Law & Pol’y 396 (2016).
The Detroit Blight Removal Task Force prepares the city to engage in an unconstitutional and unjust taking of up to 72 thousand structures in the city, but its members pretend otherwise. Task Force Chairs do not recommend that these seizures take place under the powers of eminent domain, since the Michigan Constitution erects profound barriers to blight takings. Instead, they urge that this clearance operate under an enhanced version of Michigan’s Nuisance Abatement Program, which now is used to seize approximately fifty properties a week. The Task Force, however, does not recognize that this Program has long been taking properties in violation of the U.S. Constitution’s Fifth Amendment. Additionally, blight condemnations historically exploit low-income communities and people of color, but these same officials also pretend that this danger does not exist when it comes to Motor City.
The reasons for this indirection prove exigent: Detroit is the most dilapidated city in the nation, and desperately needs to repair or remove its unsound housing. Constitutional dramas and troublesome objections about the city’s very poor would only protract this process if not vanquish it altogether. Yet the Task Force performs a great feat in obscuring these problems. How does it do it?
The Task Force succeeds by luring the public’s focus – specifically, its gaze – away from the Constitution and the problem of poverty toward mesmerizing scenes that speak to Detroiters’ greatest fears and desires. That is, officials use optics to persuade politicians, judges, and the citizenry that they can confiscate thousands of properties without compensation. In previous work, I have named these optics a specious brand of official and judicial gazing practice: I call it “peering.”
In this paper, I study how optics now work in Detroit to occlude the legal and social problems that lurk in the Task Force’s recommendations. I then offer a different public purpose under which eminent domain exercises could progress unhampered by the Constitutional barriers facing Michigan blight condemnations: The alleviation of poverty. In my development of an anti-poverty agenda that would support Detroit blight clearance, I advance an optical practice that would deflect many of the hazards of peering: I call it “seeing.”
Article: Shakira D. Pleasant, More than Just the Numbers: Fisher v. Texas and the Impact of Texas’s Top Ten Percent Law, 24 Univ. Miami Bis. L. Rev. 111 (2016).
Data — actual facts — demonstrate that Texas’s Top Ten Percent Law (“TTPL”) is insufficient to achieve diversity in the state’s universities and colleges. A significant amount of TTPL students graduated from hyper-segregated schools where African-American and Latino/a students, combined, comprised 80% or more of the total school population. Also, a substantial amount of these hyper-segregated schools had an economically disadvantaged student population exceeding the state average of 60.2%. Even with these numbers, however, Caucasian students were the majority racial group admitted to the University of Texas at Austin (“UT”) via TTPL in 2012, 2013, and 2014. Thus, this essay concludes, as did the brief, that “racial isolation in schools is a perverse and insufficient means to attain diversity in higher education.”
Part one gives background about the TTPL — the underlying law at issue in Fisher v. Texas. Part two contrasts statewide enrollment data and TTPL admissions data. Part three focuses on regional TTPL data, specifically Region 4 (Houston), which produces the highest rate of students that are automatically admitted to UT. The final part analyzes the data and TTPL’s impact on UT’s holistic admissions process — the underlying issue in Fisher v. Texas. From this analysis, part four demonstrates that UT needs TTPL and its holistic process to combat racial and socio-economic isolation which precludes diversity within racial groups.
Commentary: Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017).
Article: Sidney D. Watson, Lessons from Ferguson and Beyond: Bias, Health, and Justice, 18 Minn. J. L. Sci. & Tech. 111 (2017).
Article: Norrinda Brown Hayat, “Section 8 Is the New N-Word: Policing Integration in the Age of Black Mobility,” 51 Wash. U. J. L. & Pol’y 061 (2016).
This Article addresses the concept of black mobility within the context of Section 8 housing vouchers. Hayat explores the rise of racially coded language and its impact on racially discriminatory housing measures, highlighting the intersectionality between narratives of black criminality and the implicit biases of Section 8 proponents. Hayat argues for eradication of Section 8 enforcement schemes and facially race-neutral policies to promote the elimination of hyper-segregated neighborhoods.