Abortion: Race, rape, and the Right

—Gregory S. Parks

I want to tell you a story. I’m going to ask you all to close your eyes while I tell you the story. . . This is a story about a little girl walking home from the grocery store one sunny afternoon. . . Can you see her? Her raped, beaten, broken body soaked in their urine, soaked in their semen, soaked in her blood, left to die. Can you see her? I want you to picture that little girl. Now imagine she’s white.

The above quote reflects powerful imagery employed by defense attorney Jake Brigance in A Time to Kill (1996)—the words spoken in his summation before an all-white, southern jury during the criminal trial of a black father who was being prosecuted for killing the white men who raped, hung, and left his young daughter for dead.

The use of racial imagery like this is nothing new in American culture. Take politics, for example: racial imagery has frequently been used to sway public opinion and win elections. In 1990, when Jesse Helms, a white United States Senator from North Carolina, faced Harvey Gantt, a black challenger, race played a role in Helms’ campaign. Specifically, in an effort to allege that Gantt supported racial quotas that would benefit blacks, Helms ran an advertisement that showed the hands of a white person crumbling an employment rejection letter. “You needed that job,” the announcer said, “and you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?” The ad was broadcast a few days before the election, and arguably boosted Helms to victory. This should be of no surprise; social scientists have demonstrated for years that emotion is highly predictive of voters’ judgment and decision-making. Let’s have a little thought experiment that contemplates the extent to which racial imagery might effectuate a change in constituent attitudes in other political spheres today.

Ever since the United States Supreme Court’s Roe v. Wade decision, which expanded women’s access to abortion, Republicans have sought to reverse those gains. More recently, Republican politicians, including Richard Mourdock (state of Indiana Treasurer), have asserted that life is a gift from God, and abortions should only be allowed when the mother’s life is at risk.

As a justification for the all-out ban on abortion, Todd Akin (former U.S. Representative for Missouri) has touted that in cases of “legitimate rape,” pregnancy is rare because a woman’s body is able to prevent an unwanted pregnancy. Some Republicans, such as Joe Walsh (former U.S. Representative for Illinois), believe that there should not even be an exception for cases where the mother’s life may be at risk because, according to Walsh, “’with modern technology and science, you can’t find one instance’ in which a woman would actually die.”

The challenge for such politicians, and those who subscribe to their mode of thinking, is to not to imagine some amorphous victim. Rather, they should, in the words of Jake Brigance, “[n]ow imagine she’s white” and her rapist is black. Would they then feel the same way about abortion in instances of rape? I believe they would not, given the history of race, anti-miscegenation attitudes, and political ideology in America.

In the early 1900s, the mandatory separation of blacks and whites in social settings, referred to as Jim Crow, applied to all aspects of life in the South, including public schools and marriage statutes. The idea of “white womanhood” was a major part of white supremacy and was an essential part of the Jim Crow system in the South. White womanhood was premised on a belief that a “lady” must be white. While it was feared that interracial marriages would lead to the creation of “a mongrel breed of citizens” that would destroy white identity and threaten white supremacy, this was a fear only evident in cases involving white women who married non-white men. White women who brought race-based annulment cases against their husbands were protected from both colored men, as well any accusation from the woman’s husband that attacked her whiteness. When white men had children with black women, it was simply seen as a remnant of the practices observed during slavery.

In most states, the fear of a mongrel race as a result of interracial marriage was only a concern when it involved blacks. However, in Virginia, it was illegal for whites to marry anyone other than another white person. Southerners were alarmed by the increasing number of light skinned blacks, as it blurred the line between black and white and threatened both with supremacy and racial purity. Laws prohibiting miscegenation continued until 1967 when they were declared unconstitutional in the case of Loving v. Virginia. In Loving, the Virginia Supreme Court had relied primarily upon its earlier holding in Naim v. Naim. That case held that the policy behind Virginia’s anti-miscegenation statute was to prevent interracial procreation and the creation of a “mongrel breed of citizens.”

Racial segregation of public schools was a tool for reinforcing both white supremacy, as well as in preserving the purity of the white race, because of the vital, socialization role that schools play. Because public schools have the effect of shaping the beliefs and perspectives of young impressionable children, they were seen as “key social institutions for inculcating racial consciousness in whites and blacks.” By preventing socialization among black and white children, segregation of public schools was able to address the issue of the development of romantic feelings among people of different races, and consequently, the chances that interracial marriage would occur was decreased. In fact, the United States Supreme Court’s Brown v. Board of Education ruling, which declared segregation of public schools unconstitutional, led to fears that the socializing of black and white children would lead to interracial marriages, and thus, miscegenation. As a result, the ruling in Brown strengthened the fight against interracial marriage.

In the case of rape, the rape of black women was not even recognized in some states as a criminal offense. However, the rape of a white woman by a black man resulted in sentences for rape that were five times that given for convictions of other rapes and sometimes led to a sentence of death. Even the idea of a black man soliciting a white prostitute was viewed as objectionable.

This anxiety surrounding white women being the victim of black men’s libidinal pangs, concupiscent urges, and exertion of power and violence has not only been a historical and cultural-legal fact, it is contemporary and political. In 1991, a Michigan probate judge, discussing the Michigan law under which minors seeking abortions may request a waiver of the parental consent requirement, stated that he was hesitant to grant waivers but would consider doing so “in some cases, such as incest or when a white girl is raped by a black man.” In 2006, a white Maine couple allegedly kidnapped their pregnant nineteen year-old daughter to take her out of the state to have an abortion, because the father of her child was black.

And while many politicians have viewed abortion as breaking up the American family, President Richard Nixon thought that in the case of a pregnancy involving a black man and a white woman,  abortion was a necessary procedure. This is not surprising, given empirical research demonstrating that whites’ political orientation predicts their own romantic partner preferences. White conservatives, more so than white liberals, are less likely to desire black romantic partners and more so prefer white romantic partners. This preference, and its implications, may not even be conscious; researchers have found that political conservativism is predictive of automatic favoring high status over low status groups as well as whites over blacks.

With all this said, the recent tweet from an anonymous writer on MSNBC’s official Twitter account suggesting that conservatives hate interracial marriages may have been more accurate than inflammatory. (“Maybe the rightwing will hate it, but everyone else will go awww: the adorable new #Cheerios ad w/ biracial family,” the tweet read.) It is this anxiety, or hostility, by some on the political Right against black male/white female interracial love, sex, marriage, and in the worst of scenarios, rape, that should help inform their judgments about abortion.

Gregory S. Parks is Assistant Professor of Law, Wake Forest University School of Law. He is co-author (with Matthew W. Hughey) of The Wrongs of the Right: Language, Race, and the Republican Party in the Age of Obama (NYU Press, 2014).

Who wants to work for a woman?

—Joan C. Williams

The year my husband was born (1953), only 5% of Americans preferred a female boss. That number has climbed to 23%, according to a new Gallup survey. The proportion of people who prefer to work for men fell precipitously, from two-thirds in 1953 to about one-third today.

Perhaps even more important is the sharp rise in Americans who expressed no preference, even when cued to care. Gallup’s question asked, “If you were taking a new job and had your choice of boss, would you prefer a man or a woman?” Only 25% of Americans expressed no preference in 1953 but today it’s 41%. More good news: more people judge their bosses not by their gender, but as people. This is more likely to be true the higher the level of the job. Only 36% of those with high school or less, but 46% of those postgraduate degrees, expressed no preference.

Male privilege, you might say, ain’t what it used to be.

Once we scratch the surface, though, the news is nastier. Americans who currently work for men are twice as likely to prefer to do so. Only 16% of Republicans prefer a woman boss. American women still face a steep uphill climb, something the pipeline won’t fix: young people (18 to 34) are more likely to want a male boss and less likely to express no preference than Americans aged 35 to 54.

Most striking is that a much higher percentage (40%) of women than men (29%) prefer to work for a man. Women also are more likely than men to prefer to work for a woman: 27% of women versus only 18% of men.

Both these statistics are puzzling, but I may have an explanation for each. Women might prefer to work with women for two reasons. They might, first, feel this offers them some protection from gender bias, including sexual harassment. Second, women without college degrees typically are in pink-collar jobs that have a distinctly feminine feel a male boss might disrupt.

How about the women who prefer a male boss? Have they just been burned by Devil’s Wearing Prada?

They may have experienced workplaces where gender bias pits women against other women, a pattern The New Girls’ Network calls the “Tug of War.” An important 2010 study of legal secretaries by law professor Felice Batlan illustrates this dynamic, as does my own research. Batlan surveyed 142 legal secretaries and found that not one preferred to work for a woman partner (although, importantly, 47% expressed no preference).

Why did many secretaries prefer male bosses? Simple: they aren’t dummies. In most law firms, most people who hold power are men. Women stall out about 10 to 20% of the time in upper-level management in professional fields like business and law, so if you’re aiming to hitch your wagon to a shooting star, men are a better bet. This is one way gender bias pits women against women.

Another is when women stereotype other women. “I just feel that men are more flexible and less emotional than women,” one secretary said, while another described women lawyers as “too emotional and demeaning.” The stereotype that women are too emotional goes back hundreds of years.

But “demeaning”? That’s interesting. Her boss may just be a jerk — some people are — but perhaps she was just busy. While a busy man is busy, a busy woman, all too often, is a bitch. Because high-level jobs are seen as masculine, women need to behave in masculine ways in order to be seen as competent. But if they behave too much like men — watch out.

This no-win situation fuels conflict between women who just want to be one of the guys and those who remain loyal to feminine traditions. “Secretaries are expected to engage in traditionally feminine behavior such as care giving and nurtur[ing], where[as] women attorneys are supposed to engage in what is stereotypically more masculine behavior. Given these very different expectations and performances of gender that occur in the same space, the potential for conflict is enormous,” Batlan concludes. Indeed, many professionals find themselves expected to do what Pamela Bettis and Natalie G. Adams, in an unpublished paper, call “nice work”: being attentive and approachable in ways that are often time-consuming and compulsory for women but optional for men.

Conflict also erupts due to Prove-It-Again problems: women managers have to provide more evidence of competence as men in order to be seen as equally competent. This pattern again pits women against their bosses. “It would seem as if female associates/partners feel they have something to prove to everyone,” noted one secretary. “Females are harder on their female assistants, more detail-oriented, and they have to try harder to prove themselves, so they put that on you,” said another.

But it’s not just female assistants who voice concerns about their bosses.

The interviewees for my forthcoming book What Works for Women at Work, co-written with my daughter Rachel Dempsey, illustrate yet another dynamic: some admins make demands on female bosses that they don’t make on men. And like many types of gender bias, this one’s inflected by race. One black scientist I interviewed felt her relationship with white administrative assistants was strained because, she said, she didn’t share their habit of bonding by sharing personal information (what Deborah Tannen called “troubles talk”). Black admins “just do not expect me to want to know anything about their personal business,” she said with some relief.

Women bosses also often feel that admins prioritize men’s work. One scientist I interviewed noted that administrative staff took longer to complete work given by women than men. Another agreed: “My stuff won’t get done first.” “They say the bosses are too demanding,” said a third, recalling a conversation with admins who worked with her. She had responded, “Well, the boss that you had before was equally demanding. The guy that you were working under was equally demanding.” The admins’ reaction: “Yeah, but that’s different.” Again, the secretaries know which side the butter’s on. And the female scientists I interviewed typically felt less powerful than their male counterparts.

As usual, gender dynamics are far from simple. The Gallup study confirms the eternal story: when it comes to gender flux, the glass is half full — employees now are more comfortable with female leaders and are more likely to simply treat people as people, leaving traditional gender stereotypes behind. But the glass is also resounding, maddeningly, persistently half empty. I read the evidence that more women than men prefer to work for women as evidence of persistent gender bias. And I read the evidence that more women than men prefer to work for men the same way.

Joan C. Williams is Distinguished Professor of Law and Founding Director of the Center of WorkLife Law at the University of California, Hastings College of the Law. She is the co-author, with Rachel Dempsey, of What Works for Women at Work: Four Patterns Working Women Need to Know (forthcoming from NYU Press, 2014).

[This article was originally featured on the Harvard Business Review blog.]

Who you know: How social networks hurt Black and Latino job prospects

—Daria Roithmayr

In a recent article in The Atlantic, Derek Thompson highlights what many of us already know—that the burden of recent unemployment falls harder on black and Latino workers than on whites, even though black women and Latino men are working more consistently than their white counterparts.

This is largely due to occupational segregation—the fact that certain racial groups cluster into certain jobs. While some jobs have become increasingly integrated over time, others are dominated by particular groups. As Thompson notes, Latinos make up almost half of farmworkers, blacks make up a third of home health aides, and Asians make up 60% of personal appearance workers. So when the economy sours, certain low-skill, low-income jobs are hit harder than others, and as a result, certain racial groups are hit harder than others

Thompson argues that a disparity in education explains these racial differences. But education is only part of the story. The real story lies elsewhere, in something called “network effects,” which Thompson only mentions in passing.

The old saying—“it’s not what you know but who you know”—matters quite a lot in explaining occupational segregation. Employers fill well over half of all jobs via personal word-of-mouth referrals, and certain jobs, including those listed above, are filled almost exclusively via insider referrals.

A person’s contacts pass along information about the job opening and then often vouch for the candidate to the prospective employer. But job referral networks tend to be racially and occupationally segregated for reasons owing mostly to the idea that birds of a feather flock together socially because they create natural and comfortable connections.

Unhappily, black and Latino job referral networks are more likely to include people who are employed in low-skill, low-income jobs like bus driving and farm work, owing to past discrimination. What’s more, these networks are self-reinforcing. That is, going forward, people who make use of those social networks are far more likely to be referred via word-of-mouth to the same kinds of jobs. So Latinos will continue to take up jobs as domestic workers, for example, because the people in their networks are already employed in those kinds of jobs.

Thompson thinks that the explanation for occupational segregation is less network effects and more education. But education itself is a function of self-reinforcing network effects, this time in our neighborhoods. Public schools get their funding from local property taxes, and, like social networks, those local neighborhoods are racially segregated, which means that poor black and Latino schools are underfunded and contain predominantly poor students with greater material needs. In turn, these schools produce students with fewer skills. And of course, over time, those students are more likely to work in low-wage, low-skill jobs, and to live in poor segregated neighborhoods with underfunded schools.

Thus, even if intentional discrimination were to end tomorrow, occupational segregation will continue indefinitely. Indeed, until we address the problem of network effects, the everyday processes that we take for granted—referring our friends for a job or choosing a neighborhood on the basis of public schools—will continue to reproduce racial inequality.

Daria Roithmayr is the George T. and Harriet E. Pfleger Professor of Law at the University of Southern California Gould School of Law. She is the author of Reproducing Racism: How Everyday Choices Lock in White Advantage (forthcoming from NYU Press, 2014).

Reducing children at risk

—Robert Cherry

Today, more than half of the new mothers under 30 years old are unwed, and even enhancing the government support they receive may not substantially alter the risk their children face. A recent study finds that especially young men are less likely to flourish when raised by single mothers. Paid leave, childcare support, and universal pre-K are all policies that help these women balance work and family. However, unless there is a change in family formation, these expansions may have only modest impacts on these risks.

The rise of single motherhood reflects to a substantial degree the economic marginalization of working class men. Employment rates of young men without a four-year college degree have substantially declined and young women correctly judge that many of them are  just not going to be reliable partners. Moving Working Families Forward recommends a number of policies to better their employment prospects, including vocational high school programs that improve not only technical skills but also the soft skills – teamwork, punctuality, and interpersonal discourse – that are important to employability.

Low marriage rates are also exacerbated by the large financial penalties many working single mothers must pay for getting married. The government now provides them with substantial income support. However, virtually all those benefits are lost if a single mother marries a working partner. With the way the Earned Income Tax Credit (EITC) is structured, she could lose $3,200 or more if she qualifies for state EITC.

There have been a number of proposals for eliminating the federal component of the marriage penalty. One of them is my New Mothers Tax Relief proposal, which would virtually eliminate the federal marriage penalty by extending full EITC benefits to families with incomes of $40,000 and then slowly reduce them. About $2,000 in new benefits would then be extended to lower middle class married couples with pre-school aged children. These families often face financial pressures when they have very young children—pressures that can cause marital tensions and disruptions.

These employment and family formation proposals may be perceived as too incremental by the ideological Left and, despite their very modest costs, may be dismissed as too expensive by the Right. For those in the broad middle, however, they should be seen as vital steps in improving family stability.

Robert Cherry is Brueklundian Professor in the Department of Economics at Brooklyn College of the City University of New York and author of many books, including Moving Working Families Forward: Third Way Policies That Can Work (NYU Press, 2012).

The “bad” mothers of children with disabilities

—Ruth Colker

Blaming the mother is a long-standing cultural tradition in the United States. In the best-selling book, The Generation of Vipers, Philip Wylie invented the name “momism” in 1942 to describe the “women of America [who] raped the men, not sexually, unfortunately, but morally, since neuters come hard by morals.”

From the moment of pregnancy, mothers are disproportionately blamed for any difficulties faced by their child. During pregnancy, poor mothers are cast as uncaring crack addicts. During childbirth, the state distrusts mothers to make appropriate decisions to protect the well being of the fetus. And, if the child is born with a disability, the mother is blamed for causing whatever difficulties may occur. She is either negligent for failing to do enough to assist her child, or she is overly aggressive for advocating on behalf of her child.

The Individuals with Disabilities Education Act promises each child a free, appropriate, public education. The words “free” and “appropriate” are intended to signify that the school district, not the parent, should take primary responsibility for educating a child.  The “blame the mother” metaphor that permeates many special education cases, however, undercuts the promise of “free” and “appropriate” by placing educational responsibility on the parent, usually the mother, rather than the school district.

“I cannot turn a blind eye to Mother’s role in causing the original staffing crisis. Again, it was Mother’s complaints regarding [Teacher] and her disagreements with Dr. DePolo (that went so far as filing a professional complaint against her) that caused [Teacher] to discontinue involvement of its staff with Student and left the School District in a position to scramble to replace staff mid-school year.”

In the first case, quoted above, the school district blamed the mother for its staffing crisis after she filed a professional complaint against a teacher who was subjecting her son to seclusion and restraint. The school district insisted that the mother home-school her son for many months while it made little attempt to find a new teacher. Ultimately, the hearing officer accepted the school district’s “blame the mother” version of the story and denied her attorney fees, even though he found the school district had violated the IDEA.

“The student admittedly stays out of the classroom setting for reasons other than time-outs or to relieve anxiety … Allowing the student to do so, to such an extreme as has been tolerated by the school, and demanded by the [Mother], may be doing a dis-service to this student.”

In the second case, quoted above, the school district was allowed to get away with an appalling failure to identify a child with serious behavioral issues as disabled by blaming the mother for his supposed “intentional” bad behavior. The hearing officer said he was in no way “punishing” the mother for filing repeated administrative complaints against the school district, but he did, in fact, rely on those previous findings for the purpose of “detrimental reliance/collateral estoppel.” In other words, the mother was punished for supposedly supporting her son’s inappropriate behavior while also seeking to get him assistance so that he could make adequate educational progress.

Hostility against mothers is only one of many hurdles that parents face as they seek to attain appropriate educational services for their children with disabilities. It is one that deserves more attention now, during the 10-year anniversary of National Work and Family Month, as we seek to understand the challenges many women face.

Ruth Colker is a Distinguished University Professor and the Heck-Faust Memorial Chair in Constitutional Law at the Michael E. Moritz College of Law, Ohio State University. She is the author of Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act (New York University Press, 2013).

 

“I can’t call the police—he is the police”: Intimate partner abuse by police officers

—Leigh Goodmark

On May 7, 2013, law enforcement was called to the home that Kendra Diggs shared with her boyfriend, Baltimore City police officer James Walton Smith. After hearing a woman crying for help, the officers kicked in the door and removed Diggs from the home. Smith, who was off-duty at the time, ran upstairs, ignoring officers’ pleas to stay to talk.  While officers stood with a bleeding Diggs on the sidewalk, a shot rang out from a second floor window. Diggs, shot fatally in the head, fell to the ground as officers ran for cover. On Monday, August 5, 2013, Smith killed himself in jail while awaiting trial for Diggs’ murder.

What happened to Kendra Diggs is far from an isolated incident. Research shows that intimate partner abuse is two to four times more prevalent in the families of police officers than in the overall population. During the same week that James Walton Smith killed himself, the Cato Institute’s National Police Misconduct Reporting Project documented six other claims of intimate partner abuse involving police officers. Some of these cases have made national news in recent years, such as the 2003 murder of Crystal Brame by her husband, Tacoma police chief David Brame; as well as the domestic violence allegations faced by San Francisco sheriff Ross Mirkarimi in 2012. (Brame committed suicide after killing his wife, while Mirkarimi was reinstated as sheriff after pleading guilty to the false imprisonment of his wife.)

Because of their training, police officers can be particularly dangerous abusers.  As Diane Wetendorf, an expert in officer involved domestic violence, explains, police officers are taught how to intimidate suspects, conduct surveillance, find someone who doesn’t want to be found, and interrogate suspects. Police officers expect compliance with their orders, bolstered by the authority granted to them by the state. Officers learn how to use force without causing serious bodily injury. When used to protect the public, these are all valuable and important skills. When used against an intimate partner, they can be devastating.

The partners of police officers may have few options available to them for addressing their abuse. Most police departments have no specific policy for responding to intimate partner abuse perpetrated by one of their own, despite the efforts of the International Association of Chiefs of Police, which promulgated a model policy in July 2003. Officers’ intimate partners fear calling the police, because he is the police. They are well aware, too, of the culture of silence that cloaks officers’ actions. They know that their partners are well versed in courtroom procedures and are known and respected by judges and prosecutors—making the prospect of court proceedings daunting. Their abusers have access to information systems that allow them to track their partners. They know where the shelters are and often have working relationships or are engaged in collaborations with shelter staff and service providers. Officers’ partners also know that pursuant to federal law, a domestic violence conviction means the officer will lose his gun, and therefore his job, making him that much more vindictive and dangerous. In a society in which the primary response to domestic violence is through the criminal legal system, the partners of police officers often have nowhere to turn.

How can we better protect the intimate partners of police officers? Urging local police departments to adopt strong policies for addressing intimate partner abuse by officers would be a good start. But it is also worth questioning the nature of our response to intimate partner abuse more generally. Should the criminal justice system be the primary response to domestic violence in a country where police officers are disproportionately committing such abuse? Providing options beyond the legal system would help many people subjected to abuse, but few would benefit as much as the partners of abusive police officers.

Leigh Goodmark is Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law, and is currently a Visiting Professor of Law at the University of Maryland Francis King Carey School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (new in paperback from NYU Press).

Have things gotten worse for working women?

—Rachel Dempsey

[This piece originally appeared in the Huffington Post on September 18, 2013.]

Earlier this week, I was in a meeting with a professor when the issue of women’s advancement in the professional world came up. I was in the process of making some vague, general statement when she suddenly asked: “Have things gotten worse?”

It turned out that she had recently spoken with a student who was worried she wouldn’t be able to get her career off the ground in time to have children. The professor said the young woman’s concern had taken her aback: the student was an undergraduate, and didn’t yet have either children or a career. In her generation, my professor said, women just assumed it would all work out.

To me, though, the concern made perfect sense. From Sheryl Sandberg’s advice to young women to lean in to this recent New Yorker article about why women should think twice before getting an M.B.A., it’s hard for me not to feel a sense of impending doom when I think about the obstacle course-type maneuvering I’ll have to pull off in order to be a successful professional and a successful mother.

The math is simple, even if the choices it leaves me with are not. I’m 26 and I’m still in school. By the time I graduate, I’ll be 28. If I head straight to law practice and stay there, that would give me about seven years to make partner before I’m 35. At that point I could start to think about getting pregnant without having to worry quite so much about being derailed from the fast track. That’s a tight schedule even if everything goes perfectly in both my personal and professional life. And what if I take a clerkship? What if I decide to do public interest and live off fellowships for a few years until I can get a paid permanent job?

A lot of women my age and in my position who want to have children – or even, like me, think maybe they’ll want to someday – have a similar schedule in the back of their minds. I have more than one friend whose mother has hinted that she should think about freezing her eggs. I know the many people who tell young women to plan the timing of their pregnancies carefully mean well. But I resent it.

Not only is it stressful to feel like I’m in a race for success against my own body, but it also reinforces the very gender dynamics that put professional women in such a tough spot. Telling women – and only women – that they need to start planning for their families 10 years in advance assumes the current structure of the workplace as a given and lets men off the hook. Things really will get worse if we keep telling ambitious women about how hard their future will be at the same time that we leave the underlying gender dynamics and cultural expectations that make things so hard unexamined.

I understand why women in the generation before me felt betrayed. They were told they could have everything and then found that they were expected to do everything. But I really hope the best solution to that problem isn’t just to warn young women to gird themselves against the upcoming battle. It’s discouraging, and it risks sidelining women long before they face any concrete challenges. Maybe it’s because I’m young, but I’m still optimistic that we can find an alternative solution in strengthening men’s stake in work-family issues and developing a realistic model of professional commitment. While men may not have the same biological constraints as me, many of them love women who do. It’s not fair to expect young women to deal with the weight of this issue on our own, and it’s frankly unrealistic to expect that we can do so and also compete on equal footing with men.

There’s hope that things are, in fact, getting better. Purely anecdotally, I know a lot of men who are thinking about their career options in terms of work/life balance –perhaps as many as women, although they tend not to frame it strictly as a family issue. We need to actively include these men and others in the conversation, so that we can all aspire not just to triage a deeply embedded conflict between work and family, but rather to live a balanced and coherent life.

Rachel Dempsey is a writer and student at Yale University’s School of Law. With her mother, Professor Joan C. Williams, she is the co-author of the upcoming book What Works for Women at Work: Four Patterns Working Women Need to Know (NYU Press, 2014).

Constitution Day: 5 books to read now

September 17th is Constitution Day – a federally recognized day to celebrate and teach about the United States Constitution. But what are the proper “texts” for this day of teaching?

To start, we’ve selected a short list of recent NYU Press books we think every citizen should read this year. But, there are certainly others. What’s on your list? Let us know in the comments section!

5 books for Constitution Day

Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action by Andrew Guthrie Ferguson

Jury duty is constitutional duty—and a core responsibility of citizenship! The first book written for jurors, Why Jury Duty Matters provides readers with an understanding of the constitutional value of jury duty. (Also, be sure to read the author’s excellent piece in The Atlantic on ways to the make the Constitution relevant to our daily lives.)

 

The Embattled Constitution
Edited by Norman Dorsen, with Catharine DeJulio

The book presents a collection of the James Madison lectures delivered at the NYU School of Law. The result is a fascinating look into the minds of the judges who interpret, apply, and give meaning to our “embattled Constitution.”

 

America’s Founding Son: John Bingham and the Invention of the Fourteenth Amendment by Gerard N. Magliocca

This book sheds light on John Bingham, the father of the Fourteenth Amendment, who helped put a guarantee of fundamental rights and equality to all Americans into the U.S. Constitution.

 

Government by DissentProtest, Resistance, and Radical Democratic Thought in the Early American Republic by Robert W.T. Martin

Democracy is the rule of the people. But what exactly does it mean for a people to rule? The American political radicals of the 1790s understood, articulated, and defended the crucial necessity of dissent to democracy. This is their story.

 

Bonds of Citizenship: Law and the Labors of Emancipation by Hoang Gia Phan

In this study of literature and law from the Constitutional founding through the Civil War, Hoang Gia Phan demonstrates how citizenship and civic culture were transformed by antebellum debates over slavery, free labor, and national Union.


Congress must act to protect our most basic right

—F. Michael Higginbotham

The recent Supreme Court decision in Shelby County v. Holder, invalidating the “pre-clearance” formula of the Voting Rights Act (VRA), requiring states with a history of race discrimination in voting to secure federal approval prior to changing election practices, provides an opportunity for Congress to strengthen protection of minority voting rights. While discriminatory methods today are far from the lynch mobs and grandfather clauses that stopped blacks from voting during Jim Crow, the end result of voter suppression and dilution remains largely the same. Congress should act quickly and decisively on this core American principle in order to ensure minority participation in the democratic process.

Ernest Montgomery knows all too well the value of federal supervision in protecting minority voting rights. Prior to elections in 2008, the City of Calera, in Shelby County, Alabama, redrew jurisdictional boundaries. This process eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Montgomery, the only black city councilperson. The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system, one that prevented whites from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.

The Section 4 “pre-clearance” formula invalidated in the recent Shelby County decision is the same provision relied upon by the Justice Department to protect Councilman Montgomery from discriminatory treatment. Section 4 mandates that 15 states, including Alabama, or portions thereof, with a history of discriminatory voting laws get prior approval by the Department of Justice or a federal court for any changes to their election practices. In striking down Section 4, which had been overwhelmingly reauthorized by Congress for another 25 years in 2006, Chief Justice Roberts, writing for the majority, indicated that the formula must be “justified by current needs”.

Certainly much progress has been made since 1965 when the VRA was passed. Thousands of discriminatory proposed voting changes have been prevented since the law’s inception. Black registration rates equal that of whites in some states. Yet today, racially-polarized voting patterns, the practice of reducing minority participation for partisan advantage in many parts of the nation, with blatant racism in others, suggest a continued need for an updated pre-clearance formula.

In 2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. In 2011, the Justice Department stopped a Texas redistricting proposal determined by a federal court to purposefully discriminate against Latino voters. Last year, the Justice Department prevented a photo identification law in Texas from going into effect. At the time, some 600,000 Texans who had voted in previous elections, many of whom were black and Latino, would have become ineligible to vote without additional identification. In each instance, Section 4 was used to prohibit discrimination. Immediately after the Supreme Court invalidated the”pre-clearance” provision this summer, Texas, and several other states, reinstated the voter identification laws previously prevented under Section 4, and other local jurisdictions promised to revisit prior invalidated practices. Earlier this week, North Carolina restricted its early voting procedure utilized by 70% of blacks who voted in the state in 2012.

While the Shelby decision is problematic in that it weakens protection for minority voter participation, such inadequacy need not be permanent. The Supreme Court left open the possibility that Congress could fix the formula. Congress should update it expeditiously. In so doing, legislators must understand that racism did not end in 1965 and is not limited to the 15 states named in Section 4. Coverage based solely on geography would be outdated, as discriminatory acts occur throughout the country. Covered states should include those previously supervised, like Texas, where gerrymandered districts or choices by local officials to annex surrounding communities or implement at-large elections frequently reduce minority representation, but other states also need to be added. Those not previously supervised, like Pennsylvania and Ohio, where voter identification laws and limitations on early voting are the new poll taxes and literacy tests that frequently have a negative impact on minority participation, as they did during Jim Crow, need to be covered as well.

With evidence of such serious and widespread suppression and dilution, an expanded and refocused formula is clearly “justified by current needs”. Circumstances may have changed, but voter suppression, based on race, remains. Recent instances of discrimination, including faulty election machines, purges in voter rolls, and elimination of same-day registration prove that this “Ghost of Jim Crow” remains. Accordingly, coverage based on serious and widespread intentional racial discrimination, where ever it might occur, is sorely needed, still.

F. Michael Higginbotham is a professor of law at the University of Baltimore and the author of Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).

[This article originally appeared in the Orlando Sentinel.]

Bradley Manning’s revelations saved lives

Was the Bradley Manning verdict fair? Over at US News & World Report’s Debate Club, NYUP author Marjorie Cohn weighs in. Read her piece below, and then vote for it here!

This is a historic verdict. Judge Denise Lind correctly found Bradley Manning not guilty of aiding the enemy because the evidence failed to establish that Manning knew information he provided to WikiLeaks would reach al-Qaida. A conviction of aiding the enemy would have sent a chilling message to the news media that if they publish leaked classified information, their officers could face life in prison. That would deprive the public of crucial information.

The verdict finding Manning guilty of Espionage Act offenses, however, sends an ominous warning that could deter future whistle-blowers from exposing government wrongdoing. It’s important to keep in mind that Manning provided information indicating the U.S. had committed war crimes. Traditionally the Espionage Act has been used only against spies and traitors, not whistle-blowers. Yet President Obama has used the Espionage Act to prosecute more whistle-blowers than all prior administrations combined.

Manning’s revelations actually saved lives. After WikiLeaks published his documentation of Iraqi torture centers established by the United States, the Iraqi government refused Obama’s request to extend immunity to U.S. soldiers who commit criminal and civil offenses there. As a result, Obama had to withdraw U.S. troops from Iraq.

[See a collection of editorial cartoons on the NSA.]

The American public needed to know the information Manning provided. He revealed evidence of war crimes in the “Collateral Murder” video, which depicts a U.S. Apache attack helicopter crew killing 12 unarmed civilians and wounding two children in Baghdad in 2007. The crew then killed people attempting to rescue the wounded. A U.S. tank drove over one of the bodies, cutting it in half. Those actions constitute war crimes under the Geneva Conventions.

The Bush administration waged an illegal war in Iraq in which thousands of people were killed. It also established an interrogation program that led to the torture and abuse of people in Iraq, Afghanistan, Guantanamo and the CIA black sites. Yet it is Bradley Manning, not the Bush officials, who is being prosecuted.

Judge Lind has already reduced any sentence Manning may receive by 112 days because of his mistreatment during the first 11 months of his custody, when he was kept in solitary confinement and humiliated by being forced to stand naked for inspection. Hopefully the judge will take into account how Manning’s revelations benefit our society when she passes sentence. Manning is still facing 136 years in prison for his convictions on 19 of the 21 counts with which he was charged.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyer’s Guild. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press, 2011), Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, and Cameras in the Courtroom: Television and the Pursuit of Justice.

Bridging the racial divide after the Zimmerman verdict

—F. Michael Higginbotham

The recent acquittal of George Zimmerman for shooting and killing 17-year-old Trayvon Martin has provoked outrage and widespread (yet mostly peaceful) protests from racially mixed, but predominantly black, crowds. At the same time, conservative commentators, on local and national media, most of whom are white, have expressed support for the verdict along with the belief that Zimmerman acted in self-defense. The protests and commentary reflect a huge racial divide where 86% of blacks, but only 30% of whites, are dissatisfied with the trial’s outcome.

While some supporters of Zimmerman’s self-defense claim have expressed genuine remorse over the tragic death of an unarmed black teenager, many justify Martin’s death by insisting that he must have done something threatening. Others seem to dismiss the tragic loss of life by accusing blacks of exploiting the case to continue old habits of complaining about contrived racism.

Protesters view the verdict as another in a long line of cases where white perpetrators of violence against blacks go unpunished, reminiscent of the horrendous 1955 murder of black teenager Emmett Till, who was brutally beaten and killed for allegedly whistling at a white woman. Even President Obama, who rarely comments on race, weighed in on the tragedy by explaining that most black males in America, including himself, have experienced racial profiling, followed around department stores while innocently shopping, heard car doors locked in fear as they casually crossed the street, and been subjected to other forms of race-based fear. Obama’s sentiment reflects the basis for the fury of many blacks who believe black males in America are presumed guilty until proven innocent. They feel certain that Martin’s color, rather than his behavior, prompted Zimmerman’s suspicion and actions.

As one who has spent a career studying and teaching law while simultaneously writing texts on race, I view this tragedy as an opening to bridge the racial divide. It is not easy to discuss race across racial lines. Yet, no dialogue on race is possible unless all sides are similarly willing to listen and learn. Blacks need to acknowledge that America today is a far more just society than it was in the days of Emmett Till. We have ended Jim Crow segregation. We have instituted anti-discrimination laws in public accommodations, voting, and housing, and implemented affirmative action programs in education and employment. Even so, whites need to recognize that serious racial inequities still exist. Wealth accumulation for blacks is one twentieth of what it is for whites. Black unemployment, poverty, and homelessness are twice that of whites. Although white Americans use marijuana at the same rate as blacks, African-Americans are four times more likely to be arrested on charges of marijuana possession. Among those attempting to utilize Florida’s “stand your ground law”, which provides additional protections in claims of self-defense, 59% of defendants have been exonerated when their victims were white, while 73% of defendants have gone free when their victims were black. Nationally, white defendants in “stand your ground states” are over four times more likely to be acquitted when the victim is black than when the victim is white.

These disparities have been persistent, but they need not be permanent. Americans should be grateful to all those who have spoken out in a constructive manner on the controversial issues of race in America. With stark divisions rampant after the Zimmerman verdict, this is an opportunity to rid the country of the Ghosts of Jim Crow once and for all, an opening to bridge the divide that should not be overlooked.

F. Michael Higginbotham is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013). Race Law is a textbook used in law schools worldwide, and Ghosts of Jim Crow offers solutions to America’s race problem.

Zimmerman verdict rooted in segregated neighborhoods

—Jeannine Bell

[This article originally appeared in the San Francisco Chronicle.]

George Zimmerman will not be the last vigilante to stand trial for the killing of an unarmed black teen. While it is convenient to blame the law, such as “make my day” or “stand your ground” laws such as Florida’s, for failing to protect Trayvon Martin and other innocent young black men assumed to be suspicious, the root of this problem lies much deeper in America’s maintenance of all-white neighborhoods.

More than 40 years after the passage of the Fair Housing Act, most housing in America remains segregated along racial lines. Census data from 2010 show that the average white person lives in a neighborhood that is 75 percent white. The average black person lives in a neighborhood that is only 35 percent white.

Income and the size of one’s housing allowance, according to scholars, do not help most blacks escape segregation. Research also shows that minority neighborhoods lack the better schools and other amenities.

The causes of housing segregation are varied. To be sure, some blacks may elect to avoid living in majority white neighborhoods. One reason is violence. Zimmerman is not the first armed individual seeking to protect his neighborhood from someone he deemed an outsider.

In my research, I have chronicled hundreds of incidents between 1990 and 2010 in which whites targeted minorities who moved into their neighborhood. Cross burning, scrawled slurs and personal assaults- such violence occurs in upscale and working-class neighborhoods alike, in every area of the country, without regard to the wealth or poverty of the minorities moving in.

Blacks living in majority-white neighborhoods also face problems when inviting friends or relatives to visit. Martin’s killing highlights the vulnerability of these guests to white stereotyping that sees these black visitors, who dare to cross the color line, as potential criminals.

It is not disputed that Zimmerman initiated the encounter with Martin when he deemed the young man suspicious. It was only Martin’s blackness, not his size, nor his age, nor his behavior that sparked Zimmerman’s initial concern. Zimmerman argued that he feared for his life when his supposed assailant was an unarmed teenager he outweighed by more than 100 pounds.

Too many Americans are harmed by what I have termed the “integration nightmare.” They assume that “good” and “safe” neighborhoods are neighborhoods without black people in them. Thus, they see the arrival of black neighbors as disruptive; they see more diversity as threatening.

Ironically, the initial disruption to these white residents is psychological – the fear that more blacks will follow and that their guests will be criminals. When violence follows, it is usually initiated by whites acting out their irrational fears.

Nothing can bring back Martin, but as a society perhaps we can learn from the circumstances of his death. To prevent killings and other violence, we need to think differently; in particular, we need to recognize the value of racial and ethnic diversity in America’s neighborhoods.

Our strength as a nation lies in our learning from one another and building upon our common humanity. There is no better way to reduce the polarizing violence and politics than building integrated social networks based on living in proximity to one another.

Segregation needs to finally die and the integration nightmare is just that, a bad dream with little basis in reality.

Jeannine Bell is a professor at Indiana University Maurer School of Law and author of Hate Thy Neighbor: Racial Violence and the Persistence of Segregation in American Housing (NYU Press, 2013).