Recent Scholarship Relating Race, Economics and the Law..

SPLITTING HAIRS:  THE ELEVENTH CIRCUIT’S TAKE ON WORKPLACE BANS AGAINST BLACK WOMEN’S NATURAL HAIR IN EEOC V. CATASTROPHE MANAGEMENT SOLUTIONS, D. Wendy Greene, 71 University of Miami Law Review 987, (Summer 2017)

THE NEW RURAL-URBAN INTERFACE: NEIGHBORHOOD PROBLEMS ACROSS THE RURAL-URBAN CONTINUUM: GEOGRAPHIC TRENDS AND RACIAL AND ETHNIC DISPARITIES, Erin York Cornwell, Matthew Halla, 672 Annals of the American Academy of Political and Social Science 238 (July 2017).

IMPLICIT BIAS THEORY IN EMPLOYMENT LITIGATION, Camille A. Olson, Gina R. Merrill, Kaitlyn F. Whiteside, Needhy Shaha, 63 Practical Lawyer 37 (October 2017)

RACE AND DETERMINATIONS OF DISCRIMINATION: VIGILANCE, CYNICISM, SKEPTICISM, AND ATTITUDES ABOUT LEGAL MOBILIZATION IN EMPLOYMENT CIVIL RIGHTS, David McElhattan, Laura Beth Nielsen, Jill D. Weinberg, , 51 Law and Society Review 669 (September 2017)

ASSESSING THE VIABILITY OF RACE-NEUTRAL ALTERNATIVES IN LAW SCHOOL, Eboni S. Nelson, Ronald Pitner, Carla D. Pratt, 102 Iowa Law Review 2187 (July 2017)

EXPLOITATION IN MEDICAL RESEARCH: THE ENDURING LEGACY OF THE TUSKEGEE SYPHILIS STUDY, Ruqaiijah Yearby, 67 Case Western Reserve Law Review 1171 (2017).

THE COLOR OF KINSHIP, Robin A. Lenhardt, 102 Iowa Law Review 2071 (2017).

INTERSECTIONALITY AND THE CONSTITUTION OF FAMILY STATUS, Serena Mayeria, 32 Constitutional Commentary 377 (2017).

THE ENDURING INTEGRATION SCHOOL DESEGRATION HELPED TO PRODUCE, Kevin Brown, 67 Case Western Reserve Law Review 1055 (Sumer 2017).

BEYOND ‘BEST PRACTICES’: EMPLOYMENT-DISCRIMINATION LAW IN THE NEOLIBERAL ERA, Deborah Dinner, 92 Indiana Law Journal 1059 (Summer 2017).


SPLITTING HAIRS:  THE ELEVENTH CIRCUIT’S TAKE ON WORKPLACE BANS AGAINST BLACK WOMEN’S NATURAL HAIR IN EEOC V. CATASTROPHE MANAGEMENT SOLUTIONS, D. Wendy Greene, 71 University of Miami Law Review 987, (Summer 2017)

o   What does hair have to do with African descendant women's employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women's acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal's recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers' “hyper-regulation of Black women's bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts' strict application of a “legal fiction” known as the immutability doctrine--and the biological notion of race that informs it--have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.

·        THE NEW RURAL-URBAN INTERFACE: NEIGHBORHOOD PROBLEMS ACROSS THE RURAL-URBAN CONTINUUM: GEOGRAPHIC TRENDS AND RACIAL AND ETHNIC DISPARITIES, Erin York Cornwell, Matthew Halla, 672 Annals of the American Academy of Political and Social Science 238 (July 2017).

o   Neighborhood problems such as abandoned buildings, broken windows, and crime are often seen as urban problems. However, the recent housing crisis, shifting demographics, and deepening inequality may have increased neighborhood problems outside of cities. This article describes trends in neighborhood quality across the rural-urban continuum and considers how these trends differ by race/ethnicity. We use data from the 1985 to 2013 American Housing Survey to examine neighborhood problems surrounding a sample of 125,049 housing units in central cities, suburbs, exurbs, and rural areas. We find that rates of neighborhood problems are consistently highest in cities, but they have been steadily increasing in nonmetropolitan areas. We also find that disparities in exposure to neighborhood problems among racial and ethnic groups are not limited to cities: blacks and Latinos living outside of metropolitan areas are increasingly and disproportionately exposed to neighborhood problems. Further research should examine both the causes and consequences of neighborhood problems across the rural-urban continuum.

o   Housing and neighborhood conditions are critical foci in social science research in part because they are both a product and a mechanism of social stratification. Classic *239 formulations of spatial attainment theory suggest that as families achieve higher earnings and accumulate greater wealth, they will move to higher-quality housing and neighborhoods (Massey and Denton 1985). These areas are likely to provide access to more resources, better schools, and more employment opportunities, in turn enhancing educational attainment, earnings, and wealth (see Sampson 2012). Higher-quality residential contexts are also characterized by fewer neighborhood problems, such as broken windows, abandoned buildings, junk or litter, and crime. These residential conditions threaten residents' health by increasing stress (Hill, Ross, and Angel 2005) and fear (Ross and Jang 2000), and by heightening risks of depression (Latkin and Curry 2003), respiratory illnesses (Rosenbaum 2008), and disability (Steptoe and Feldman 2001). And together, conditions of neighborhood physical and social disorder can lead to social withdrawal, distrust, and isolation (Ross, Mirowsky, and Pribesh 2001; Steenbeek and Hipp 2011; York Cornwell and Behler 2015).

o   While important and insightful, prior research examining individual exposure to neighborhood problems has largely focused on the distribution of problems within urban contexts and their consequences for urban residents (Burke, O'Campo, and Peak 2006; York Cornwell and Cagney 2014). In fact, neighborhood problems are commonly conceptualized as urban problems, stemming from patterns of urban growth as well as urban economic and social processes (e.g., Massey and Denton 1998; Wilson 1987; Sampson, Raudenbush, and Earls 1997). Consequently, relatively little is known about the prevalence, distribution, or consequences of neighborhood problems outside of the city. This is despite the fact that approximately 46.2 million Americans live in nonmetropolitan counties (U.S. Department of Agriculture 2016), and demographic change over the last several decades has been dominated by population growth outside of central cities (Guest and Brown 2005). The geographic spread of population growth outside of cities has been driven by the suburbanization of blacks and new immigrants (Timberlake, Howell, and Staight 2010) and by rural Hispanic growth in new destinations (Lichter 2012). Concurrently, the loss of rural jobs to urban areas, and the selective out-migration of young, educated whites have reshaped conditions in rural settings (Carr and Kefalas 2009). However, prior work has not examined in depth the extent of racial/ethnic disparities in residential quality within both metropolitan and nonmetropolitan areas.

o   In this article, we use data from the 1985 to 2013 American Housing Survey (AHS) to examine trends in residential conditions within a nationally representative sample of 125,049 housing units located across central cities, suburbs, exurbs, and nonmetropolitan areas. First, we examine the prevalence of neighborhood problems--including abandoned buildings, buildings with bars on windows, and perceived crime--across the rural-urban continuum over the past 30 *240 years. We then examine trends in racial/ethnic disparities in residential quality. That is, we explore to what extent racial/ethnic minorities are increasingly or decreasingly likely to be exposed to neighborhood problems inside and outside of the city.

o   We find that neighborhood problems are most common in central cities, and they have increased since 2007. However, we also observe gradual, long-term growth in neighborhood problems outside of the central city. With respect to racial and ethnic disparities in residential quality, we find that disparities in exposure to neighborhood problems have been relatively stable, or declining, in central cities and suburban areas. However, blacks and Latinos living in exurbs and rural areas are increasingly disadvantaged compared to their white counterparts. Some, but not all, of these widening disparities are seemingly the result of the Great Recession and its economic aftermath. Our findings call into question the assumption that neighborhood problems are strictly urban problems and suggest the emergence, or strengthening, of structural barriers that limit minorities' access to high quality neighborhoods outside of urban areas.

·        IMPLICIT BIAS THEORY IN EMPLOYMENT LITIGATION, Camille A. Olson, Gina R. Merrill, Kaitlyn F. Whiteside, Needhy Shaha, 63 Practical Lawyer 37 (October 2017)

·        RACE AND DETERMINATIONS OF DISCRIMINATION: VIGILANCE, CYNICISM, SKEPTICISM, AND ATTITUDES ABOUT LEGAL MOBILIZATION IN EMPLOYMENT CIVIL RIGHTS, David McElhattan, Laura Beth Nielsen, Jill D. Weinberg, , 51 Law and Society Review 669 (September 2017)

o   What factors affect whether ordinary citizens believe that workplace decisions involving African-American employees rise to the level of discrimination? When do observers believe targets of possible race discrimination should consider mobilizing the law? We use a factorial design vignette study administered to a nationally representative sample of 2,087 ordinary people to address these questions. The “vigilance hypothesis” predicts that minorities will be more likely to perceive discrimination than whites. Our analysis partially confirms this: African Americans perceive anti-Black discrimination at higher rates than do whites and Latinos, while Latinos do not show a significant difference from whites. Where respondents believe discrimination occurred, we analyze what influences whether respondents might recommend legal mobilization. The “cynicism hypothesis” suggests that people of color may be less likely to favor using law. We find, however, that African-American and Latino respondents express more confidence in civil litigation, compared to whites. Further, African Americans express the strongest support for legal mobilization (recommending that a “friend” contact an attorney), while whites and Latinos do not differ in mobilization recommendations.

·        ASSESSING THE VIABILITY OF RACE-NEUTRAL ALTERNATIVES IN LAW SCHOOL, Eboni S. Nelson, Ronald Pitner, Carla D. Pratt, 102 Iowa Law Review 2187 (July 2017)

o   Over the past several years, law schools have experienced many challenges stemming from declines in student enrollment due to a shrinking applicant pool. The declining number of applicants is particularly problematic for law schools seeking to educate students in racially diverse *2188 learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action and the likelihood that President Donald Trump will make several appointments to the Supreme Court-- thereby shifting its balance toward the ideology of colorblindness--it is imperative to engage in a project that examines the relationship between racial categories and race-neutral identity factors in law-school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools comply with Fisher I's mandate that universities consider race-neutral means for achieving diversity before using race as a factor in their admissions processes. Understanding this relationship will also be useful for higher-education institutions seeking to enroll racially diverse student bodies in jurisdictions that do not permit the consideration of race in admissions, and may become necessary for all institutions if the Court overrules the Fisher and Grutter decisions. Moreover, the data from this study illuminates persisting structural inequalities for certain racial minority groups and rebuts the assumption that those privileged enough to make it to law school are insulated from the structural inequalities that race-conscious affirmative action historically sought to address.

o   This empirical study surveyed first-year law students at public American Bar Association approved law schools and asked them about race-neutral aspects of their identity, such as family background and educational-institution characteristics, to determine whether there is a relationship between their race and certain socioeconomic identity factors. The findings will enhance law schools' understanding of race-neutral admissions factors that may contribute to their abilities to assemble racially diverse student bodies, and will give them tools to experiment with trying to yield racially diverse classes without asking applicants about their race. Possessing such knowledge will greatly aid law schools as they develop and implement admissions policies in their efforts to provide greater access to students from backgrounds underrepresented in the legal profession while also fulfilling their commitment to educate all law students in a diverse learning environment.

·        EXPLOITATION IN MEDICAL RESEARCH: THE ENDURING LEGACY OF THE TUSKEGEE SYPHILIS STUDY, Ruqaiijah Yearby, 67 Case Western Reserve Law Review 1171 (2017).

·        THE COLOR OF KINSHIP, Robin A. Lenhardt, 102 Iowa Law Review 2071 (2017).

o   This Article addresses the need for family law scholarship that better theorizes and grapples with how race informs American life in the 21st Century. Family law scholars have been instrumental in documenting and advocating for recognition of the “new kinship”--familial relationships and affective ties forged outside of marriage and amidst dramatic demographic shifts. In doing so, though, they have largely ignored race, focusing instead on matters such as gender or class. The assumption is that kinship is race-neutral. But, in fact, kinship has a color. Part II explores this reality by analyzing Cramblett v. Midwest Sperm Banks, LLC, a case involving a lesbian mother who filed a wrongful birth suit when the insemination process she underwent resulted not in the white baby desired, but a child who is partially black. Part III explains how the colorblind approach that informs much of family law scholarship undermines the ability of scholars in this area both to interrogate cases like Cramblett and to offer meaningful solutions to the problems that families confront. Part IV advocates for a new approach to issues of family and race, including whiteness. Mapping a research agenda and alternative vision for family law scholarship, this article urges greater attention to the ways in which race informs the functioning of all families and intersects with issues like sexual orientation and class. This article also makes the case that family law scholars can advance the national debate about race and inequality in the United States by offering insights into the ways in which family law systems and policies shape notions of race and structure inequality across a range of areas.

·        INTERSECTIONALITY AND THE CONSTITUTION OF FAMILY STATUS, Serena Mayeria, 32 Constitutional Commentary 377 (2017).

o   ….At particular historical moments, advocates have seized upon social movement victories and associated developments in constitutional doctrine--a brief openness to race-based disparate impact and economic justice claims, the emergence of sexual privacy and sex equality principles--to expose and exploit the intersections between race, class, gender, and family status-based inequality. Plaintiffs and their lawyers made race- and poverty- based discrimination arguments against laws and policies that distinguished between individuals and families based upon marital status. For instance, when advocates challenged “illegitimacy” penalties such as the denial of wrongful death and workers' compensation, inheritance rights, and government benefits to nonmarital children and their parents, they often argued that such policies had a disparate impact on families of color. Indeed, all of the early illegitimacy cases were brought by African American women and their children, but no Supreme Court opinion so much as mentions race.

o   Intersectional harms often underpinned legal assaults on family status inequalities. Challenges to welfare policies that capped AFDC benefit amounts, as well as lawsuits against “suitable home” and “substitute father” policies included race (and sometimes “family status”) discrimination claims. Women of color and concerns about racially disparate impact played a prominent if often unspoken role in litigation challenging mandatory paternity disclosure for unmarried women poor enough to be eligible for public assistance. Constitutional and statutory challenges to policies excluding “unwed mothers” from employment frequently combined race and sex discrimination claims, contending that such restrictions disproportionately burdened women of color and frequently betrayed invidious racial motivation.

o   Courts often decided these cases without engaging the race discrimination claims, and the racial context frequently receded from judicial consciousness as cases moved up through appellate courts. That is not to say that the racial subtext had no impact on legal decisionmakers, however: there is evidence that it did, sometimes to plaintiffs' advantage. As the 1970s wore on, though, plaintiffs more frequently framed their claims as sex discrimination: they emphasized the severe disparate impact on women of laws penalizing nonmarital parenthood, given women's disproportionate responsibility for the care and support of children generally and nonmarital children in particular. Nonmarital fathers' claims, too, usually sounded in terms of sex discrimination (or due process, in the case of parental rights) rather than racial discrimination. Even so, women and men of color remained at the forefront of challenges to laws that discriminated based on marital status and sex.

·        THE ENDURING INTEGRATION SCHOOL DESEGRATION HELPED TO PRODUCE, Kevin Brown, 67 Case Western Reserve Law Review 1055 (Sumer 2017).

·        BEYOND ‘BEST PRACTICES’: EMPLOYMENT-DISCRIMINATION LAW IN THE NEOLIBERAL ERA, Deborah Dinner, 92 Indiana Law Journal 1059 (Summer 2017).

o   Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of antidiscrimination ideals in the late twentieth century was intertwined with the deregulation of labor and with cutbacks in the welfare state. The Article argues that even “best practices” to prevent employment discrimination are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.

o   The legal scholarship on employment discrimination and the humanities scholarship on neoliberalism are ordinarily siloed. Placing these two literatures in conversation shows that the ideals underpinning Title VII of the Civil Rights Act of 1964 overlap with the major tenets of neoliberalism. Both affirm individual freedom, efficient markets, and judicially enforced negative rights.

o   The conceptual convergence between Title VII and neoliberalism enabled employers, business trade associations, courts, and even liberal scholars to interpret the statute in ways that expanded managerial freedom and undermined workers' economic security and control over the terms of their jobs. Drawing on novel historical research, this Article illustrates how this happened. In the early 1970s, employers litigated under Title VII to invalidate state laws regulating the hours and conditions of women's work. Today, legal scholars commonly extol the end of these labor standards as marking the genesis of a contemporary prohibition on sex-role stereotypes. In actuality, the erosion of state protective labor laws represented the defeat of working-class feminists' more capacious vision for sex equality. Through the 1970s and 1980s, furthermore, scholars argued that Title VII promoted efficient labor markets. This normative justification, however, had the unintended effect of foreclosing claims under the statute that sought not merely opportunity but also the transformation of labor-market structures.

o   Failure to understand how neoliberalism and Title VII jurisprudence intersected historically leaves us blind to the ways in which employment-discrimination law may legitimate economic inequality. This has important consequences for contemporary legal theory. Dominant antidiscrimination theories--centered on antistereotyping and efficiency--reinforce the existing terms of the employment relationship and do not serve the needs of working-class women and men. This Article reveals the limits of antidiscrimination theory to remediate class-based subordination.