Feminst Legal Theory Second Edition Chapter 3 Wages
Women and the Law Stories Book
Edited By ELIZABETH M. SCHNEIDER & STEPHANIE M. WILDMAN
Foundation Press | Thomson Reuters (2011)
This book examines landmark cases establishing women's legal rights. Each chapter discusses a case and examines the litigants, history, parties, strategies, and theoretical implications. Subject areas covered are common to many women and law casebooks, including history, constitutional law, reproductive freedom, the workplace, the family, and women in the legal profession, domestic violence, and rape.
The book can be used as a supplement to any law school course, as a text for courses in gender and law and feminist jurisprudence, and could also serve as an undergraduate or graduate textbook in women's studies or in other interdisciplinary fields. See the Table of Contents and Contributors (below); click on any chapter for more information about that chapter and teaching aids.
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©2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Meet the Editors
Elizabeth M. Schneider
is the Rose L. Hoffer Professor of Law at Brooklyn Law School and has also been Visiting Professor of Law at Columbia and Harvard Law Schools. Professor Schneider teaches and writes in the fields of federal civil litigation, gender, law and domestic violence.
Stephanie Wildman is a Professor of Law and Director of the Center for Social Justice and Public Service at Santa Clara University School of Law.
TABLE OF CONTENTS
Introduction:
Telling Stories to Courts: Women Claim Their Legal Rights
By Elizabeth M. Schneider and Stephanie M. Wildman
HIDDEN HISTORIES: THE ROLE OF GENDER
Chapter 1:
Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank
By Rebecca Hall and Angela Harris
DEVELOPING A CONSTITUTIONAL JURISPRUDENCE TO COMBAT SEX DISCRIMINATION AND TO PROMOTE EQUALITY
Chapter 2:
"When the Trouble Started": The Story of Frontiero v. Richardson
By Serena Mayeri
Chapter 3:
Single-Sex Public Schools: The Story of Vorchheimer v. School District of Philadelphia
By Martha Minow
Chapter 4:
Unconstitutionally Male?: The Story of United States v. Virginia
By Katharine T. Bartlett
REPRODUCTIVE FREEDOM
Chapter 5:
Infertile by Force and Federal Complicity: The Story of Relf v. Weinberger
By Lisa C. Ikemoto
Chapter 6:
"Nearly Allied to Her Right to Be" — Medicaid Funding for Abortion: The Story of Harris v. McRae
By Rhonda Copelon and Sylvia A. Law
THE WORKPLACE
Chapter 7:
Pregnant and Working: The Story of California Federal Savings & Loan Ass'n. v. Guerra
By Stephanie M. Wildman
Chapter 8:
"What Not to Wear" —Race and Unwelcomeness in Sexual Harassment Law: The Story of Meritor Savings Bank v. Vinson
By Tanya K. Hernández
Chapter 9:
Of Glass Ceilings, Sex Stereotypes, and Mixed Motives: The Story of Price Waterhouse v. Hopkins
By Martha Chamallas
FAMILY LAW
Chapter 10:
Six Cases in Search of a Decision: The Story of In re Marriage Cases
By Patricia A. Cain and Jean C. Love
Chapter 11:
State-Enabled Violence: The Story of Town of Castle Rock v. Gonzales
By Zanita E. Fenton
Update on Gonzalez case – July 2011
WOMEN IN THE LEGAL PROFESSION: LAW STUDENTS, ATTORNEYS, LAW PROFESSORS, AND JUDGES
Chapter 12:
The Entry of Women into Wall Street Law Firms: The Story of Blank v. Sullivan & Cromwell
By Cynthia Grant Bowman
Chapter 13:
A Tribal Court Domestic Violence Case: The Story of an Unknown Victim, an Unreported Decision, and an All Too Common Injustice
By Stacy L. Leeds
©Copyright 2011 Foundation Press, Used by Permission
Resources for Teaching Women and the Law Stories
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United States v. Cruikshank 92 U.S. 542 (1876)
Dr. Rebecca Hall is the Economic Justice Coordinator for the state of Utah's Domestic Violence Council. She has taught law and history at University of California at Berkeley School of Law and the University of Utah's S.J. Quinney College of law.
After graduating from Berkeley Law in 1989, Dr. Hall represented low income families in housing law, and represented plaintiffs in race and sex-based discrimination cases. After seven years as a litigator in public interest law experiencing how the structured patterns of race, class and gender deformed the possibilities of justice through the legal system, she returned to academic life to study the history of the law and its relation to the creation and maintenance of systems of social stratification. She received her Ph.D. from the University of California, Santa Cruz in 2004 in History with a minor in Feminist Studies. She was Mellon Foundation Post-Doctoral Fellow at Berkeley Law and University of California at Berkeley's Center for Race and Gender through the Spring of 2007. Her research and publications have been in the area of historical formations of racialized gender, women in slave revolts, the legal history of slavery and the slave trade, and current legacies of slavery. Numerous grants and fellowships, including the American Association of University Women, The Ford Foundation, The Mellon Foundation and the Woodrow Wilson Foundation, have supported Dr. Hall's work.
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Angela P. Harris is Baldy Distinguished Scholar at the University at Buffalo, State University of New York, and Professor of Law, University of California-Berkeley. She has written widely in the field of critical jurisprudence and is co-author of several casebooks, including CRIMINAL LAW: CASES AND MATERIALS (with Cynthia Lee), ECONOMIC JUSTICE (with Emma Coleman Jordan), and RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA (with Richard Delgado, Juan Perea, Jean Stefancic, and Stephanie Wildman).
Chapter 1: Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank
By Rebecca Hall and Angela Harris
Chapter Summary
U.S. v. Cruikshank is best known as a race discrimination case that arose in the context of terrorism directed at black men. However, women's role in the conflict and in the struggle against the many incidents of racial oppression in the era that preceded the case has not been well-known. This chapter underlines the fact that women's stories may be present in legal struggles even when gender issues are not visible or the case is decided on other grounds or understood to stand for other legal principles.
On its face, Cruikshank involved the criminal conspiracy section of the Enforcement Act of 1870, which provided criminal penalties for conspiracies to deprive citizens of their constitutional rights. The decision reversed convictions for the lynching of two African American men, Levi Nelson and Alexander Tillman, which had been secured based on the argument that the murders had interfered with the victims' right to peaceful assembly. The untold story of the case centers on the Congressional testimony of African-American women, detailing not only the campaign of murdering Black men, but also the White supremacist campaign of sexualized terrorism against Black women. This history of Black women's testimony that led to the legislation at issue in the case provides an important illustration of the hidden role of gender.
Authors Rebecca Hall and Angela Harris tell the stories of Black women's efforts to resist violence based on both gender and race subordination. They explain that understanding "racialized gender," which they define as "the interplay of race and gender subordination," is central to comprehending the path of legal reform during Reconstruction and after. The concept of racialized gender has continuing significance for constitutional law, legal theory, and feminist legal history. This case is the first chapter in the volume because of the historical importance of the Cruikshank case, the crucial element of "racialized gender" that underlies many women's legal cases, and the need to look underneath the surface for important stories of women and law when it appears, at first blush, that the case is about something else.
Questions for Discussion of Chapter 1:
1. Does the author's description of racialized gender ring true in your own experience or observations of the world? What does it mean to view gender as racialized? What does it mean to view it as not racialized? Is that stripping of other identity categories away from gender possible or desirable?
2. Hall and Harris discuss how oppression and subordination in the past utilized notions and stereotypes of gender to keep both women and men of color, including Black men, "in line." How have men of other racial groups been gendered by race?
3. Hall and Harris identify two weaknesses of the Reconstruction framework that enabled racialized gender violence at the time ofCruikshank: "lack of adequate federal enforcement and the law's deliberate refusal to protect 'social rights.' " To what extent do these weaknesses exist and have implications today?
4. At the time of the gang rape of Frances Thompson, riots and massacres involved guerrilla violence groups as well as public officials who participated through action and inaction, blurring the line between "private" and "public" violence. Violence against women, especially women of color, remains an alarming concern today. How does this violence continue to be an issue of both private and public violence? What doctrinal, legal, and other strategic lessons can be directed to combating violence against women?
5. The human rights regime during the Reconstruction legal scheme failed to secure rights, privileges, and protections. Given the impacts of increased globalization and contemporary consciousness-raising, how might a human rights framework in addressing injustices fare better today?
Suggested Further Reading
1. Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989) (analyzing problems of intersectionality from a Black feminist perspective and discussing the manner in which the judicial system frames and interprets the stories of Black female plaintiffs with a specific focus placed on three Title VII cases).
2. Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 Berkeley Women's L.J. 16 (1995) (exploring how the use of these theories can shatter age-old paradigms and social ideologies).
3. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990) (challenging the "one unitary voice" some feminist legal theorists use as a reference point because that one narrow perspectivesilences the voices of the non-mainstream, including Black women, and privileges others).
4. Angela P. Harris, Jurisprudence of Reconstruction, 82 Cal L. Rev. 741 (1994) (exploring the essence of Critical Race Theory (CRT) jurisprudence and the inherent tension that exists between the philosophy's "modernist" and "postmodernist" narratives).
5. Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation after Morrison and Kimel, 110 Yale L.J. 441 (2000) (looking at the status of federal antidiscrimination jurisprudence in the wake of Morrison and Kimel and the impact these cases have had in imposing substantial restrictions on Congress's power to enact antidiscrimination laws under Section 5 of the 14th Amendment).
6. Hannah Rosen, "Not That Sort of Women": Race, Gender, and Sexual Violence During the Memphis Riot of 1866, in Sex, Love, Race: Crossing the Boundaries in North American History 267, (Martha Hodes ed., NYU Press 1999) (chronicling the reign of sexual violence that erupted during the Memphis Riot of 1866 when city police and other lower middle class white men attacked recently emancipated slaves in the streets and in their homes).
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Frontiero v. Richardson, 411 U.S. 677 (1973)
Serena Mayeri is Assistant Professor of Law and History at the University of Pennsylvania, where she teaches courses in legal history, gender and the law, family law, and employment discrimination.
She has written several articles and chapters on the history of feminist legal advocacy, and is currently at work on a book, tentatively titled Reasoning from Race: Feminism and the Law in the Late Civil Rights Era (forthcoming, Harvard Univ. Press, 2011). She received her A.B. from Harvard/Radcliffe College, and earned a J.D. and a Ph.D. in History from Yale University, where her dissertation won the George Washington Eggleston Prize and the Organization of American Historians' Lerner-Scott Prize. Prior to teaching at Penn, she served as a Samuel I. Golieb Fellow at New York University Law School and as a law clerk to Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit.
Chapter 2: "When the Trouble Started": The Story of Frontiero v. Richardson
By Serena Mayeri
Chapter Summary
In 1969, a twenty-three-year-old U.S. Air Force lieutenant married a twenty-four-year-old college student. Had the lieutenant been a man, she would automatically have received a housing allowance and medical benefits for her spouse. Indeed, when Lt. Sharron Frontiero received her first post-wedding paycheck as a physical therapist at the Maxwell Air Force Base hospital in Alabama, she "thought it was a mistake. I set out to correct it," she later recalled, "and that's when the trouble started."
The "trouble" was that although Lt. Frontiero patiently made her way through the military base bureaucracy, eventually filing a formal complaint, the answer was always the same: official policy denied to female servicemembers the spousal benefits routinely available to men. For a married woman Air Force officer to receive a housing allowance and health insurance for her spouse, she had to prove that her income covered more than one-half of her husband's expenses.
This chapter tells the story of Frontiero v. Richardson from its origins on an Air Force base in Alabama to its rich and complicated role in American constitutional law and social movement history. The Frontiero litigation provides a lens through which to explore cooperation and conflict among civil rights lawyers; the legal strategy of Ruth Bader Ginsburg and other feminist advocates in the 1970s and beyond; and internal debates among lower court judges and Supreme Court Justices about the nature of sex discrimination, judicial review, and constitutional change. The trouble that Sharron Frontiero started would eventually affect the development of equal protection standards of review; the allocation of government benefits; military equality; gay rights; reproductive freedom; and the relationship between constitutional amendment advocacy and judicial interpretation in American law.
Questions for Discussion of Chapter 2:
1. Do you agree with Justice Brennan's support for analogies between race-based classifications to sex-based ones? What pitfalls might lie in the use of such an analogy?
2. Should classifications based on sex be subjected to strict judicial scrutiny? Can you imagine a compelling interest that government might have for making a sex-based classification? See chapter 4 onU.S. v. Virginia discussing the evolution of the standard of review.
3. The Frontiero court used the term sex or sex-based to describe the form of discrimination. Would it be preferable to use the term gender? Would the different terminology make any difference?
Suggested Further Reading
1. Honorable Ruth Bader Ginsburg & Barbara Flagg, Some Reflections on the Feminist Legal Thought of the 1970s, 1989 U. Chi. Legal F. 9 (1989) (tracing the historical roots of female subordination beginning with the exclusion of females at the 1787 Constitutional Convention and placing particular focus on the justice system's struggles to comprehend and rectify generations of gender inequality during the 1960s and 1970s).
2. Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 Cal. L. Rev. 755 (2004) (discussing the legal feminist movement's division over issues of race, class, and ideology).
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Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (1976) (3rd Circuit)
Vorchheimer v. School District of Philadelphia 430 U.S. 703 (1977)
Martha Minow is the Dean and Jeremiah Smith, Jr. Professor at Harvard Law School where she has taught since 1981. An expert in human rights with a focus on members of racial and religious minorities and women, children, and persons with disabilities, her scholarship also has addressed private military contractors, management of mass torts, transitional justice, and law, culture, and social change.
She has published over 150 articles and her books include Partners, Not Rivals: Privatization and the Public Good; Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence; Not Only for Myself: Identity Politics and Law; and Making All the Difference: Inclusion, Exclusion, and American Law. She has edited or co-edited many books including Government by Contract; Just Schools: Pursuing Equality in Societies of Difference; Breaking Cycles of Hatred: Memory, Law and Repair; Imagine Co-Existence: Restoring Humanity After Ethnic Conflict; Law Stories; Family Matters; Civil Procedure: Doctrine, Practice and Context; Women and the Law; Narrative Violence and the Law; and The Essays of Robert M. Cover. Her latest book is In Brown's Wake: Legacies of America's Educational Landmark. A Phi Beta Kappa graduate of the University of Michigan and the Harvard Graduate School of Education, Minow received her law degree at Yale Law School before serving as a law clerk to Judge David Bazelon and Justice Thurgood Marshall. A member of the Academy of Arts and Sciences, she has received the Sacks-Freund Teaching Award at Harvard Law School, the Holocaust Center Award, the Radcliffe Graduate Society Medal, and honorary doctorates in Education (Wheelock College) and Law (University of Toronto).
Chapter 3: Single-Sex Public Schools: The Story of Vorchheimer v. School District of Philadelphia
By Martha Minow
Chapter Summary
Single-sex education has marked an important frontier in sex-discrimination litigation. In Vorchheimer v. Sch. Dist. of Philadelphia, Susan Vorcheimer was denied admission to Philadelphia's all-male elite college-preparatory public high school and sued the school district on Equal Protection grounds. The 3rd Circuit found (and the Supreme Court affirmed per curiam) in favor of the District, finding that "Thus, given the objective of a quality education and a controverted, but respected theory that adolescents may study more effectively in single-sex schools, the policy of the school board here does bear a substantial relationship [to an important state objective]." The Court's opinion hinged on the voluntary nature of attending single-sex educational institutions and that the quality of both all-male and all-female institutions was equal in all senses except the sex of the student bodies.
Martha Minow's chapter explores the contradictions of single-sex public education, particularly the differences between integration of girls into more academically challenging boys' schools and the integration of boys into all-girls' schools. She links these issues to Brown v. Board of Education and the idea that schools could be separate but equal. Minow explores the difficult decisions proponents of feminist litigation had to make in regards to this issue, and also the contemporary facets of all-girls' schools. A particular focus is also placed on the complexity of single-sex schools in the current public educational landscape, and the rationales for maintaining those schools that exist today.
Questions for Discussion of Chapter 3:
1. Although the U.S. Supreme Court decided theVorchheimer case more than 30 years ago, the case retains much contemporary relevance. Do you think that the issues about single-sex girls' schools are still the same? Do the issues differ from those affecting single-sex boys' schools? If so, why?
2. Do the problems and advantages posed by single-sex schools differ through the range of education levels (elementary, middle, and high school; college; and graduate school). If so, how and why? Would a single-sex law school for women make sense?
3. How are the issues facing single-sex schools different from challenges facing schools that screen based on race, for example theGarrett case in Detroit, discussed in the chapter, that concerned separate schools for young black men? Do particular issues and opportunities arise around the intersections of race or ethnicity and gender identities in the pursuit of equal educational opportunity?
4. What are the rationales for single-sex schools with which you are comfortable and think are sufficiently tailored so as to avoid the reinforcement of sex-based stereotypes? Do you think the Young Women's Leadership School, discussed in the chapter, is a good idea? Sufficient to withstand constitutional scrutiny?
5. Some argue that the acceptability—and constitutionality—of single-sex schools depend upon the specific rationale for a specific school in a specific time. Do you agree?
6. How does the existence of single-sex private schools affect judgments over whether communities can create single-sex public schools or classrooms? How important would it be to ensure individual children (and/or their parents) a choice of single-sex or co-ed public schooling?
Suggested Further Reading
1. Kimberly J. Jenkins, Constitutional Lessons for the Next Generation of Public Single-Sex Elementary and Secondary Schools, 47 Wm. & Mary L. Rev. 1953 (2006)(analyzing single-sex public education and the Supreme Court's interpretation of intermediate scrutiny).
2. Nancy Levit, Embracing Segregation: The Jurisprudence of Choice and Diversity in Race and Sex Separatism in Schools, 2005 U. Ill L. Rev. 455 (2005) (critiquing the trend of re-segregation in public schools and considering the warm reception sex segregation has received recently within the public school systems).
3. Martha Minow, Feminist Reason: Getting It and Losing It, 38 J. Legal. Educ. 47 (1988)(advocating the inclusion of different perspectives based on race, sexuality, gender, or religious affiliation, because recongizing difference induces a legal commitment to equality).
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United States v. Virginia, 518 U.S. 515 (1996)
Katharine T. Bartlett is the A. Kenneth Pye Professor of Law at Duke University School of Law. Her work in the fields of family law, gender law, and employment discrimination has appeared in the Harvard Law Review, Yale Law Journal, Virginia Law Review, Michigan Law Review, California Law Review, and other leading journals.
Her law school casebook, Gender and Law: Theory, Doctrine, Commentary, first published in 1993, is now in its 5th edition (2010, with Deborah Rhode); an undergraduate edition of the casebook, Gender Law and Policy, was published in 2010. Bartlett served as a co-reporter for the American Law Institute's Principles of the Law of Family Dissolution (2002), for which she was named R. Ammi Cutter Chair in 1998. She received the Scholar/Teacher of the Year Award at Duke University in 1994 and served as Dean of the Duke University School of Law from 2000 to 2007. In 2006 Equal Justice Works honored her with the Dean John R. Kramer Award for her public interest initiatives and support for student leadership.
Chapter 4: Unconstitutionally Male?: The Story of United States V. Virginia
By Katharine T. Bartlett
Chapter Summary
In 1996, Justice Ruth Bader Ginsburg wrote an opinion for the Supreme Court which held that the exclusion of women from a state-supported single sex school was unconstitutional. The decision handed down in United States v. Virginia was the Supreme Court's most definitive pronouncement on the constitutional standard of review for gender discrimination. The case was initiated by a complaint made by a young woman to the U.S. Department of Justice and the Department of Justice brought the lawsuit on behalf of the government.
Katherine Bartlett explores the history of this important case in which an entirely separate institution, Virginia Women's Institute for Leadership (VWIL) was established. She closely examines the different versions of equality that were utilized by lawyers, including arguments based on excluding women based on their difference from men; creating separate but equal institutions; assimilating women into the all-male institutions based on their similarities to men; and accommodating women's "differences." Bartlett argues that the government lawyers failed to see another significant version, that gender norms embedded in the institutional structure and culture of VMI promoted subordination of women. She explores how this more nuanced approach to equality, seeking to recognize and to end subordination, would have important consequences for women's legal rights as it could challenge more directly male-defined institutions and "glass ceilings."
Questions for Discussion of Chapter 4:
1. What was unusual about the procedural context of this litigation? How might that procedural posture have shaped the development of the case?
2. The litigation development of the case surfaces a range of approaches to the meaning of "equal protection" and the appropriate remedy for its violation. How do you assess these different approaches?
3. The author argues that the plaintiff's lawyers failed to raise the claim of "institutional maleness." What are the facets of "institutional maleness"? Do you agree with the author that the failure to address "unconstitutional maleness" as a legal theory was a fatal problem in this case?
4. Are there other factual contexts in which you can imagine that feminist litigators could raise these arguments? How would you structure these arguments and in what contexts might they be useful?
Suggested Further Reading
1. Mary Anne Case, Two Cheers for Cheerleading: The Noisy Integration of VMI and the Quiet Success of Virginia Women in Leadership, 1999 U. Chi. Legal F. 347 (1999) (exploring issues of gender discrimination and separatism in post secondary education with a particular focus placed on the litigation that surrounded the all-male Virginia Military Institute and the Virginia Women in Leadership Program established at Mary Baldwin College).
2. Feminist Legal Theory: Readings in Gender and Law , (Katharine T. Bartlett & Rosanne Kennedy eds., Westview Press, 1991) (compilation of classic and new papers on feminist legal discourse which examine the efforts of theorists to challenge conventional legal doctrines).
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Relf v. Weinberger 372 F.Supp. 1196 (1974)
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Lisa C. Ikemoto is a Professor of Law at University of California at Davis School of Law. She teaches bioethics, health care law, public health law, reproductive rights, law & policy, marital property and property. Her research areas include bioethics, reproductive justice, health care law, and public health law. More specifically, she focuses on the ways that race and gender mediate access to and impacts of technology use, health care, and law. She has written about race and gender disparities in health care, genetic and reproductive technology use, the regulation of fertility and pregnancy.
Chapter 5: Infertile by Force and Federal Complicity: The Story of Relf v. Weinberger
By Lisa Ikemoto
Chapter Summary
Relf v. Weinberger arose as a challenge to the federal government's failure to protect those undergoing federally funded surgical sterilizations against abuse. The named plaintiff, Katie Relf, avoided forced sterilization by locking herself in her room. Her younger sisters, Mary Alice and Minnie Relf, ages twelve and fourteen respectively, were taken by an Office of Economic Opportunity family planning nurse and sterilized without their knowledge or their parents' knowledge and consent. The Relf sisters were among hundreds of women and girls whom providers forcibly sterilized during the 1970s. In fact, Relf v. Weinberger is often discussed as a case about "sterilization abuse." Yet, sterilization was one of several fertility control measures that family planning officials imposed on women and girls, often using coercion or deception, and always in the name of a "greater good." Other fertility control measures included IUDs and the extra-legal use of Depo Provera.
This chapter explores the many faces of Relf. The chapter opens by tracing the ideological roots of the Relf case to earlier points in U.S. history, and in particular to state-sponsored eugenics. The chapter then situates the acts and decisions of providers and family planning officials in the milieu of 1970s political retrenchment. This analysis explains how the Relf case arose at the nexus of a modified eugenics rationale and the fight for reproductive rights. The next part elaborates on facts specific to Relf v. Weinberger. It provides background on federally-funded family planning programs and sketches the range of practices used in those programs to involuntarily sterilize women and men. It then focuses on the lives of the Relf sisters, the litigation, and the immediate aftermath. The last part of the chapter steps back and examines the Relf case through a number of lenses, including, race, class, reproductive justice, and medical ethics".
Questions for Discussion of Chapter 5:
1. Do you think that women's reproductive capacity is still used as a form of social control in the modern era? How might social control of women through their reproductive capacity affect men?
2. Did this chapter change your view of the issue of sterilization as a family planning option?
3. Does the notion of reproductive freedom connect to identity?
4. Is law more effective in the reproductive freedom realm in protecting women than it is in the area of domestic violence? (see chapters 11 and 13, discussing issues of domestic violence.)
Suggested Further Reading
1. Lisa C. Ikemoto, Lessons from the Titanic: Start with the People in Steerage, Women and Children First, in MOTHER TROUBLES: RETHINKING CONTEMPORARY MATERNAL DILEMMAS 157, (Julia E. Hanigsberg & Sara Ruddick eds., Beacon Press 1999) (examining the status of immigration and welfare reform laws in 1999, the author notes the disproportionately negative impact such legislation has had on women of color, and specifically poor females who are noncitizens).
2. Lisa C. Ikemoto, Eggs as Capital: Human Egg Procurement in the Fertility Industry and the Stem Cell Research Enterprise, 34 Signs: J. Women, Culture & Soc'y 763 764, 779 (2009) (exploring the medical and commercial practices used in the procurement of human eggs and the bio-capital these eggs have generated in the fertility and research industries).
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McRae v. Califano, 491 F.Supp. 630 (1980)
Harris v. McRae, 448 U.S. 297(1980)
Rhonda Copelon is a feminist activist and professor at CUNY Law School and director of its widely acclaimed International Women's Human Rights Law Clinic (IWHR). Prior to joining CUNY's founding faculty, she worked at the Center for Constitutional Rights on a broad range of civil rights and feminist cases involving race, class and gender. She advised on many, and argued two, cases in the U.S. Supreme Court, including Harris v. McRae (see supra chapter 6). In l991, she became involved in the global women's human rights movement and authored groundbreaking articles on gendered war crimes and domestic violence as torture. With IWHR, global, and U.S. partners, she has contributed to evolving women's human rights, including the recognition of sexual violence and gender in international criminal law and the Rome Statute of the International Criminal Court, as well as the movement to embed international human rights to US law, policy and culture. She has had Fulbright grants to Costa Rica and Chile; received SALT's M. Shanara Gilbert Human Rights Award in 2009 and the Feminist Press' Crossing-Borders Award in 2010; and serves as a board member of the Center for Constitutional Rights and the National Economic and Social Rights Initiative. She co-authored Sex Discrimination and Law: History, Theory and Practice 2d ed. (1996)(with Barbara Allen Babcock et al.) and is currently working on a book exploring her domestic and international feminist work for the Feminist Press (forthcoming 2011).
Sylvia Law is the Elizabeth K. Dollard Professor of Law, New York University Law. For three decades, Sylvia A. Law has been one of the nation's leading scholars in the fields of health law, women's rights, poverty, and constitutional law. She has played a major role in dozens of civil rights cases before the U.S. Supreme Court and in lower state and federal courts, and has testified before Congress and state legislatures on a range of issues. In 1984, Law became the first lawyer in the United States selected as a MacArthur Prize Fellow. She is the co-director, with Norman Dorsen, of the Arthur Garfield Hays Program at New York University School of Law. She has been active in the Society of American Law Teachers, served as president of the organization from 1988-1990 and was honored by the organization as Law Teacher of the Year in 2001. In 2004, she was elected to the American Academy of Arts and Sciences.
Chapter 6: "Nearly Allied to Her Right to Be" —Medicaid Funding for Abortion: The Story of Harris v. McRae
By Rhonda Copelon and Sylvia A. Law
Chapter Summary
This chapter tells the story of Harris v. McRae, 448 U.S. 297 (1980), upholding the Hyde Amendment's exclusion of coverage for medically necessary abortions from the otherwise comprehensive Medicaid program. It is written by two of the lawyers who litigated the case and who worked for reproductive freedom before McRae and since. The chapter recounts the trial in the U.S. District Court in Brooklyn exploring the consequences to the lives and health of poor women of excluding insurance coverage for "medically necessary" abortions. The trial also explored the role of religious belief and institutional mobilization in the debate about insurance coverage for abortion. The Court, 5-4, rejected plaintiffs arguments based on equality, liberty, privacy, free exercise of religion and the separation of church and state. The Hyde rule, excluding medically necessary abortion from health insurance, has been extended to all women who depend on federal funding, including federal employees, military personnel, federal prisoners and others.
Questions for Discussion of Chapter 6:
1. What did district court Judge Dooling mean when he said that a woman's decision to terminate her pregnancy because medically necessary to her health is an exercise of "the most fundamental of rights, nearly allied to her right to be."? Does the denial of that right for poor women by the U.S. Supreme Court deny those women their "right to be"
2. Would this litigation have been more effective if, as the authors ask, it had been based on stories of individual women with compelling medical circumstances? Would it have been more compelling if based on a right to health?
3. Is denial of access to abortion a form of sex discrimination?
4. Is denial of access to abortion for poor women a significant issue in your community? Why or why not?
Suggested Further Reading
1. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955 (1984) (assessing the doctrinal tenants of modern constitutional sex equality and why its development has been stunted by an inherent social collective that is unwilling to acknowledge the biological reproductive differences that exist between men and women).
2. Reva Siegel, Reasoning From the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992) (tracing the historical roots of abortion-restriction regulation to the original campaign to criminalize abortion that took place during the 19th century).
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California Federal Savings & Loan Ass'n. v. Guerra, 479 U.S. 272 (1987)
Stephanie M. Wildman is a Professor of Law and Director of the Center for Social Justice and Public Service at Santa Clara University School of Law. In 2007, she received the Great Teacher Award from the Society of American Law Teachers, the largest national organization of law school faculty. She was the founding director of the Center for Social Justice at the University of California at Berkeley School of Law. Her books include, Race and Races: Cases and Resources for a Diverse America (with Richard Delgado, Angela P. Harris, and Juan F. Perea) (2d ed. 2007); Social Justice: Professionals Communities and Law (with Martha R. Mahoney and John O. Calmore) (2003), Privilege Revealed: How Invisible Preference Undermines America (with contributions by Margalynne Armstrong, Adrienne D. Davis, & Trina Grillo). Wildman teaches Law and Social Justice and Gender and Law. Her scholarship emphasizes systems of privilege, gender, race, and classroom dynamics.
Chapter 7: Pregnant and Working: The Story of California Federal Savings & Loan Ass'n. v. Guerra
By Stephanie M. Wildman
Chapter Summary
The workplace has been a major site for women using law and the legal system to contest societal norms. The inclusion of a prohibition against sex discrimination in Title VII of the 1964 Civil Rights Act led the U.S. Supreme Court to consider women's ability to have a child and remain employed. The context of pregnancy at issue in this case remains central to the meaning of equality in the workplace.
Lillian Garland, employed by California Federal Savings and Loan, sought to return to work as a receptionist after a two-month leave relating to childbirth. When she attempted to return to work, California Federal told her that her position had been filled and that no other positions were available. She was a single mother and as a consequence of unemployment, she lost her apartment and custody of her child. She sought to enforce her right to a maternity leave under a California statute. California Federal and other employers argued that federal law preempted the state legislation, because it was sex specific. The federal Pregnancy Discrimination Act provided that pregnancy leave and reinstatement be treated the same as any other temporary disability. Thus, they reasoned, returning a pregnant worker to her job violated federal law. The Supreme Court found that the California state law was not preempted by federal law, which had intended only to prevent discrimination against pregnancy, but not to prohibit states from giving preferential treatment to pregnant workers. The Court reasoned that promoting equal employment opportunity was not inconsistent with the purposes of Title VII.
The Cal Fed case dramatically split the feminist legal community, with feminists disagreeing publicly about the meaning of workplace equality. The debate, often framed in terms of "equal" versus "special" treatment, scarred many long standing alliances and the issues still resonate today. The chapter analyzes the meaning of these tensions and underscores the significance of family leave. Unfortunately, the United States has a long way to go on the road to achieving a family leave policy that ensures equality.
Questions for Discussion of Chapter 7:
1. Who has the better of the debate among feminists as to the meaning of equality in this context?
2. Was the use of disability rights theory by amici helpful to discussions about pregnancy?
3. Why has the U.S. lagged behind other industrial nations in creating a paid family leave? Would such a policy be desirable? Should it focus only on women and pregnancy or have a broader scope? How might such a policy be funded? See Patricia Shiu and Stephanie M. Wildman,; Pregnancy Discrimination and Social Change: Evolving Consciousness About a Worker's Right to Job-Protected, Paid Leave, 21 Yale J.L. & Feminism 119 (2009), exploring the history of social change in California and an enactment of a paid family leave law.
4. Would a privilege analysis provide a better frame than discrimination in thinking about pregnancy or other reproductive freedom issues? Would privilege have served better in other cases?
Suggested Further Reading
1. Herma Hill Kay, Equality and Difference: The Case of Pregnancy, 1 Berkeley Women's L.J. 16 (1985)(concluding that the assimilationist model is not useful for achieving legal equality and developing an alternative model for thinking about the reproductive difference between men and women).
2. Linda J. Krieger & Patricia N. Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action And the Meaning of Women's Equality, 13 Golden Gate U. L. Rev. 519 (1983) (examining limitations of formal equality and suggesting a theory for substantive equality).
3. Saul Levmore, Parental Leave and American Exceptionalism, 58 Case W. Res. L. Rev. 203 (2007) (comparing global parental leave benefits to those offered in the United States).
4. Patricia A. Shiu & Stephanie M. Wildman, Pregnancy Discrimination and Social Change: Evolving Consciousness About A Worker's Right to Job-Protected, Paid Leave, 21 Yale J.L. & Feminism 119 (2009) (examining the process of social change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave).
5. Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. Rev. L. & Soc. Change 325 (1984/85) (arguing that "equal treatment" is a better model for protecting pregnant women in the workplace than the "special treatment" model).
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Meritor Savings Bank v. Vinson
477 U.S. 57 (1986)
Tanya K. Hernandez is a Professor of Law at Fordham University School of Law, where she teaches Comparative Employment Discrimination, Critical Race Theory, and Trusts & Estates. By ignoring the potential salience of race in sex discrimination law, the courts have created a doctrine that consistently obscures the experiences of minority women, and thereby veils the use of racial stereotypes in the development of sexual harassment jurisprudence. Doctrinally, the absence of a race conscious Supreme Court analysis results in a problematic jurisprudential conceptualization of "welcomeness" in relation to sexual harassment law. To be precise, the Supreme Court's decision to make a complainant's "sexually provocative speech or dress" relevant to a finding of sexual harassment embeds unconscious historical presumptions about the wantonness of Black women into the legal doctrine. The examination of the attire of Black women (such as Mechelle Vinson) dovetails with stereotypic notions of the sexual availability of Black women. By ignoring the race of the plaintiff, the Supreme Court was able to overlook the significance of racial stereotypes that pervade the question of appropriate evidence of welcomeness. The insistence on a color-blind assessment in the Supreme Court analysis obstructed recognition of the speech and dress portion of the welcomeness assessment as a problematic racial construct. As a result, the Court introduced the racially informed concept of "welcomeness" evidence of sexual harassment into sexual harassment jurisprudence where it today interferes with the enforcement of sexual harassment laws for women of all colors.
Chapter 8: Pregnant and Working: The Story of California Federal Savings & Loan Ass'n. v. Guerra
By Tanya K. Hernandez
Chapter Summary
Women of color have figured prominently in the development of sexual harassment law and policy, and African-American women in particular brought most of the early precedent-setting sexual harassment cases. Yet, despite the central role of women of color in the evolution of sexual harassment law, few people know about the racial context of these cases. No discussion of race appears in the court opinions themselves, and discussion of race has also been largely absent from the legal discourse and commentary surrounding these cases. The landmark sexual harassment case, Meritor Savings Bank v. Vinson, represents a prime example of this "racial silencing."
By ignoring the potential salience of race in sex discrimination law, the courts have created a doctrine that consistently obscures the experiences of minority women, and thereby veils the use of racial stereotypes in the development of sexual harassment jurisprudence. Doctrinally, the absence of a race conscious Supreme Court analysis results in a problematic jurisprudential conceptualization of "welcomeness" in relation to sexual harassment law. To be precise, the Supreme Court's decision to make a complainant's "sexually provocative speech or dress" relevant to a finding of sexual harassment embeds unconscious historical presumptions about the wantonness of Black women into the legal doctrine. The examination of the attire of Black women (such as Mechelle Vinson) dovetails with stereotypic notions of the sexual availability of Black women. By ignoring the race of the plaintiff, the Supreme Court was able to overlook the significance of racial stereotypes that pervade the question of appropriate evidence of welcomeness. The insistence on a color-blind assessment in the Supreme Court analysis obstructed recognition of the speech and dress portion of the welcomeness assessment as a problematic racial construct. As a result, the Court introduced the racially informed concept of "welcomeness" evidence of sexual harassment into sexual harassment jurisprudence where it today interferes with the enforcement of sexual harassment laws for women of all colors.
Questions for Discussion of Chapter 8:
1. Meritor represents the first U.S. Supreme Court recognition of sexual harassment as a form of sex discrimination under Title VII. As the author explains, the Court does not mention the plaintiff's race or the race of her harasser. Why might the Court have made that omission? Would the jurisprudence have been more effective if the Court had recognized the parties' race?
2. Why would Mechelle Vinson bring this claim as harassment, rather than prosecuting a rape claim?
3. Should the appearance and dress of someone who files a charge for sexual harassment be admissible evidence? Why or why not?
4. Why does the Court hold that unwelcomeness is the "gravamen of any sexual harassment claim." (p. 290) How does unwelcomeness differ from voluntariness in the context of these cases?
5. Should an employer be liable for harassment by an employee? Why or why not?
Suggested Further Reading
1.Anita Bernstein, Law, Culture, and Harassment, 142 U. Pa. L. Rev. 1227 (1994) (examining workplace sexual harassment as an instance of comparative law).
2. Anita Bernstein, Treating Sexual Harassment with Respect, 111 Harv. L. Rev. 445 (1997) (offering "the respectful person" standard in place of the "reasonable person standard when proving the subjective hostile work environment element in sexual harassment suits).
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Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Martha Chamallas holds the Robert J. Lynn Chair in Law at the Ohio State University in Columbus, Ohio where she teaches Gender and the Law, Torts, and Employment Discrimination. Prior to joining the Ohio State faculty, she was on the faculty at Louisiana State University, the University of Pittsburgh and the University of Iowa and has held distinguished visiting Chairs at Washington University, the University of Richmond and Suffolk University. At Iowa, she was Chair of the Women's Studies Program. In 2007, she was named a University Distinguished Lecturer at Ohio State. Her book, Introduction to Feminist Legal Theory (Aspen Publishers 2d ed. 2003) has been widely adopted for law courses and seminars and interdisciplinary offerings on gender. In torts, she has written extensively about hidden biases in the calculation of damages and the low status accorded to non-economic harms, such as emotional distress and relational injuries. In anti-discrimination law, she has published articles on sexual harassment, constructive discharge, pay equity, tokenism, unconscious race and gender bias and the processes of devaluation. Her articles and essays have appeared in numerous journals, including Michigan Law Review, University of Pennsylvania Law Review, Southern California Law Review, University of Chicago Law Review, and William and Mary Law Review. Her latest book The Measure of Injury: Race, Gender and Tort Law (co-authored with Jennifer B. Wriggins) was published by New York University Press in May 2010. She is a member of the Litigation Committee for the American Association of University Professors and the American Law Institute.
Chapter 9: "Of Glass Ceilings, Sex Stereotypes, and Mixed Motives: The Story of Price Waterhouse v. Hopkins
By Martha Chamallas
Chapter Summary
Martha Chamallas analyzes Ann Hopkins struggle to become a partner at Price Waterhouse, which led to the lawsuit Price Waterhouse v. Hopkins. Ms. Hopkins was the only female associate being considered for partnership. Price Waterhouse held up her partnership candidacy for reconsideration. Later, partners in her office refused to re-propose her candidacy. She sued under Title VII, claiming sex-based discrimination. Partners viewed Ms. Hopkins very differently. To some she was "'an outstanding professional' who had a 'deft touch,' a 'strong character, independence and integrity.'" To others she was "sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff." One partner advised that plaintiff should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court acknowledged the legal relevance of sex stereotyping, finding it present in this case. The Court also developed the mixed-motivation framework of proving discrimination under Title VII. An employer could avoid liability for discrimination by proving by a preponderance of the evidence that "it would have made the same decision even if it had not taken plaintiff's gender into account."
Chamallas explores the many ramifications of Price Waterhouse, which has been a particularly important and "generative" case in contemporary women's rights litigation. She reports on the detailed trial record including the important expert testimony of Dr. Susan Fiske, the problem of mixed motives and "unconscious bias," the broad problem of sex-stereotyping in law and culture, and the way in which the case has been relied on as advocates make new arguments about gender non-conformity. She examines the implications of the case for "glass ceiling" litigation. Chamallas explains the tensions inherent in the concept of "gender stereotyping" as it stands in between "structural" approaches to employment discrimination and postmodern notions of "gender performance" that have recently dominated analyses of workplaces.
Questions for Discussion of Chapter 9:
1. The story of Ann Hopkins struggling against the glass ceiling at Price Waterhouse is one of the most significant employment discrimination cases decided by the U.S. Supreme Court in the last twenty-five years. What aspects of the case make it so important?
2. Why do the circumstances of the case highlight the problem of "double binds" that women in upper level employment contexts often face?
3. What was the significance of the expert testimony on sex-stereotyping presented by Susan Fiske? Do you think that employment discrimination cases still need such expert testimony? Why are the cognitive judgments reflected in the testimony difficult for judges to see? What could be done to assist judges in seeing those issues more clearly?
4. As the author describes, Price Waterhouse has a rich theoretical legacy and the case has had a considerable precedential impact in many areas of sex and gender law. Which facets of the case were most intriguing to you? What is the importance of structural analysis in employment cases?
Suggested Further Reading
1. Martha Chamallas, Structuralist and Cultural Domination Theories Meet Title VII: Some Contemporary Influences, 92 Mich. L. Rev. 2370 (1994) (examining notions of equality in the workplace and discussing three important theoretical approaches—motivational, structural, and cultural discourse—on workplace equality).
2. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006) (introducing the concept of implicit bias and its impact on discrimination law).
3. Charles R. Lawrence, III, Unconscious Racism Revisited: Reflections on the Impact and Origins of the "Id, the Ego, and Equal Protection", 40 Conn. L. Rev. 931-978 (2008) (revisiting hisgerminal article and critiquing an increasingly conservative Supreme Court majority's doctrinal march to "re-segregation" in the name of "colorblindness.").
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In re Marriage Cases, 43 Cal.4th 757, (2008)
Patricia Cain is Professor of Law at Santa Clara University. She is a graduate of Vassar College (A.B.) and the University of Georgia (J.D.). A member of the American Law Institute and prior board member of Lambda Legal Defense and Education Fund, she is a former co-president (with Jean Love) of the Society of American Law Teachers (SALT). She currently serves as Treasurer of SALT. Professor Cain teaches courses in federal taxation, wills and estates, property, feminist legal theory, and sexuality and the law. She has published several book chapters, including "stories" in both Tax Stories and Property Stories, as well as other numerous articles and books, including Rainbow Rights: The Role of Lawyers and Courts In the Lesbian and Gay Civil Rights Movement (Westview Press 2000) and Sexuality Law, Second Edition (with Arthur S. Leonard) (Carolina Academic Press 2009).
Jean C. Love is Professor of Law at Santa Clara University. Before joining the Santa Clara faculty in 2007, she was the Martha-Ellen Tye Distinguished Professor of Law at the University of Iowa. She teaches constitutional law, remedies, and torts. She is the recipient of three Distinguished Teaching Awards (from the University of Iowa, the University of Texas, and the University of California at Davis School of Law). A member of the American Law Institute, she is a former co-president (with Patricia Cain) of the Society of American Law Teachers (SALT). She has chaired the Women in Legal Education Section and the Gay and Lesbian Legal Issues Section (as it was then known), as well as the Remedies Section and the Torts and Compensation Systems Section of the Association of American Law Schools. She has published several articles and book reviews with a focus on gender and sexual orientation, including Discriminatory Speech and the Tort of Intentional Infliction of Emotional Distress, 47 Wash. & Lee L. Rev. 123 (1990) and The Synergistic Evolution of Liberty and Equality in Marriage Cases Brought by Same-Sex Couples in State Courts, 13 J. Gender Race & Just. 276 (2010). She is also the author of two casebooks, Equitable Remedies, Restitution and Damages (7th ed. 2005) and An Introduction to the Anglo-American Legal System (4th ed. 2004).
Chapter 10: Six Cases in Search of a Decision: The Story of In re Marriage Cases
By Patricia A. Cain and Jean C. Love
Chapter Summary
On May 15, 2008, the Supreme Court of California handed down its decision in the much awaited litigation officially known as In re Marriage Cases. The case was actually a consolidation of six individual cases, all raising the same issue: Is denial of marriage to same-sex couples valid under the California Constitution. These six cases, as with Pirandello's six characters in search of an author, took center stage for a time, not in a real theater, but rather in the evolving drama over extending equal marriage rights to gay men and lesbians. And while the case, like Pirandello's play, does conclude, the story remains unfinished. The Supreme Court's decision opened the institution of marriage, making it equally accessible to same-sex couples in California. But the reality of that day became an illusion in the tomorrow that produced Proposition 8, the ballot initiative that limited marriage to heterosexual couples. Of course, it is possible that tomorrow's reality will turn Proposition 8 into an illusion, but that story has yet to be written, even as other states such as Iowa recognize the validity of same-sex marriage.
Questions for Discussion of Chapter 10:
1. Several judicial decisions on the topic of LGBT legal rights have found differential treatment to be a form of sex discrimination. Is discrimination against LGBT people best categorized as a form of sex discrimination or as discrimination based on sexual orientation?
2. Would a privilege analysis, rather than a discrimination analysis better serve to explain attitudes toward LGBT marriage?
3. Consider California's early history in the struggle for LGBT rights. What is the history in your own state? If you are in California, did you know this history? What is the significance to law that these histories are lost or obscure?
4. Proponents of same-sex marriage have relied on anti-miscegenation cases like Perez v. Sharpe and Loving v. Virginia to argue that the state should not restrict one's fundamental right to marry. Is this reliance persuasive?
Suggested Further Reading
1. David B. Cruz, "Just Don't Call It Marriage": The First Amendment and Marriage as an Expressive Resource, 74 S. Cal. L. Rev. 925 (2001) (advocating a First Amendment perspective and describing how civil marriage functions as a uniquely powerful symbolic or expressive resource).
2. David B. Cruz, The New "Marital Property": Civil Marriage and the Right to Exclude, 30 Cap. U. L. Rev. 279 (2002) (critiquing the idea that domestic partnership provides equal status as civil marriage).
3. Sylvia A. Law, Who Gets To Interpret the Constitution? The Case of Mayors and Marriage Equality, 3 Stan. J. Civ. Rts. & Civ. Liberties 1 (2007) (considering whether, when, and how a local executive may interpret a state constitution differently from courts or legislatures when issuing same-sex couple marriage licenses).
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Town of Castle Rock v. Gonzales,
545 U.S. 748 (2005)
Zanita E. Fenton is Professor of Law at the University of Miami School of Law, where she teaches courses in Constitutional Law, Family Law, Torts, Race and the Law, and seminars in Critical Race Feminism and in the Reproductive Technologies. Professor Fenton's scholarly interests cover issues of subordination, focusing on those of race, gender and class. She explores these issues in the greater contexts of understanding violence and in the attainment of justice. She writes in these areas and regularly speaks concerning these and related topics in both national and international fora. She has long served as an advocate and consultant for survivors of domestic abuse. Professor Fenton received an A.B. from Princeton University and a J.D. from Harvard Law School, where she served as editor-in-chief of the Harvard BlackLetter Journal. After law school, she practiced briefly in the New York firm of Cleary, Gottlieb, Steen & Hamilton before she served as a law clerk to the Honorable Edward R. Korman, United States District Court for the Eastern District of New York.
Chapter 11: State-Enabled Violence: The Story of Town of Castle Rock v. Gonzales
By Zanita E. Fenton
Chapter Summary
Jessica Gonzales was in the midst of divorcing her abusive husband, Simon. She had obtained a civil protective order that excluded Simon from the home and permitted visitation with the children on alternate weekends and "upon reasonable notice," for midweek dinner visits "arranged by the parties." One day, while the Gonzales children played outside in their front yard, Simon made an unscheduled visit and took possession of the three girls in violation of the protective order. Over the course of the next ten hours, Jessica called the police several times and filed a police report in person, but the police nonetheless took no action to locate Simon Gonzales. Early the next morning, Simon Gonzales came to the police station on his own accord and opened fire. The police returned fire, thus ending the life of Simon Gonzales. A search of his bullet-ridden truck revealed the murdered bodies of ten-year old Rebecca, eight-year old Katheryn and seven-year old Leslie, the daughters of Jessica and Simon Gonzales.
After the death of her children, Jessica filed suit under 42 U.S.C. § 1983 against the Castle Rock Police Department, whom she alleged chose not to act, in violation of the requirements of section 18-6-803.5(3) of the Colorado Revised Statute. The district court in ruling on this motion determined that no deprivation of either substantive or procedural due process had occurred. On appeal, a three-judge panel of the Tenth Circuit affirmed in part, and reversed in part, the district court's ruling. The panel held that Ms. Gonzales could sue the Castle Rock police on the violation of procedural due process ground, while leaving the dismissal of the substantive due process claim in place. On rehearing en banc, a divided Tenth Circuit reached the same disposition, concluding that the town had deprived Jessica of her due process rights because "the police never 'heard' nor seriously entertained her request to enforce and protect her interests in the restraining order." On November 1, 2004, the United States Supreme Court granted Castle Rock's request for review and on June 27, 2005, reversed the Tenth Circuit's ruling. The Court determined that the statutory language regarding protective orders did not create an individual benefit or "entitlement," a protected property interest. On this basis, the Court decided that the state could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order.
A significant part of the holding in Castle Rock was that enforcement of the restraining order does not constitute a property right for 14th Amendment purposes. The members of the Court primarily focused on the entitlement analysis under Board of Regents of State Colleges v. Roth (408 U.S. 564 (1972)) in deciding whether the state issued protective order created an entitlement, that is, a protected property interest in that protective order. The question of procedural due process became the focus in Castle Rock in part because DeShaney v. Winnebago (489 U.S. 189 (1989)) an earlier case of family violence, purported to dispose of issues of substantive due process and deliberately left open questions of procedural due process. The DeShaney Court, in footnote two, acknowledged the possibility of a procedural due process claim. Roth further indicates that property interests, while not directly created by the Constitution, may be defined by an independent source, such as state law. Nonetheless, Justice Scalia, writing for a majority of the Court, determined that Colorado State's use of "shall" in its restraining order legislation was not sufficiently strong to be considered mandatory and therefore could not be an entitlement. Thus, even protective orders, administratively designed to ensure quick investigation and response, are meaningless.
Questions for Discussion of Chapter 11:
1. Why does a country steeped in democratic ideals not view protection against harm as a fundamental right? How can one exercise freedom of religion or speech without a sense of bodily security?
2. What might have happened if Jessica Gonzales had exercised self-help and gone to get the children, rather than relying on the protective order? Should the legal system promote self-help alternatives? If it does not, then shouldn't the system provide protection?
3. What role does the common law history of women being men's "property" play in the evolution of legal doctrine in this area?
4. If the Inter-American Commission on Human Rights recognizes the claims made by Jessica Gonzales, why would that finding be significant in the U.S. or around the world?
5. How do systems of subordination (gender, race, poverty, etc.) combine to make manifestations of violence more likely and does the state have any responsibility in these manifestations?
Suggested Further Reading
1. Caroline Bettinger-Lopez , Jessica Gonzalez v. United States: An Emerging Model for Domestic Violence & Human Rights Advocacy in the United States, 21 Harv. Hum. Rts. J. 183 (2008) (discussing the consequences of the Inter-American Commission on Human Rights decision to declare it had the competence to examine the human rights claims of Jessica Gonzales).
2. Zanita E. Fenton, Paradox of Hierarchy – or Why We Always Choose the Tools of the Master's House, 31 N.Y.U. Rev. L. & Soc. Change 627 (2006/07)(criticizes the methodology of teaching law as embracing and encouraging the hierarchical system as a form of tradition, leaving students disenchanted).
3. Reg Graycar & Jenny Morgan, Feminist Legal Theory and Understandings of Equality: One Step Forward or Two Steps Back? 28 T. JEFFERSON L. REV. 399 (2006) (exploring two interrelated aspects of understandings of equality—Aristotelian or formal equality, and legal claims predicated upon a recognition of inequality—then considering why formal equality continues to have such purchase, and discussing ways in which we may continue to engage with equality more fruitfully).
4. G. Kristian Miccio, A Cruel Deception: Castle Rock, Constitutional Protection and Conceptions of State Accountability, 10 Geo. J. Gender & L. 87 (2009) (rejecting the Supreme Court's decision and contending that nothing would have influenced the Court to part with crabbed notions of collective responsibility in defense of political, economic, and legal status quo).
5. Elizabeth M. Schneider, Cheryl Hanna, Judith G. Greenberg & Clare Dalton, DOMESTIC VIOLENCE AND THE LAW: THEORY AND PRACTICE, (2nd ed., Foundation Press 2008) (textbook resource).
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Blank v. Sullivan & Cromwell, 418 F.Supp. 1 (1975)
Cynthia Grant Bowman is the Dorothea S. Clarke Professor of Feminist Jurisprudence at Cornell Law School. A graduate of Swarthmore College, she holds a Ph.D. in political science from Columbia University and a J.D. from Northwestern University School of Law. She has published widely in diverse areas relating to family law and other topics concerning law and gender. She co-authored Feminist Jurisprudence: Taking Women Seriously (West Publishing 3d ed. 2006). Most recently, she wrote Unmarried Couples, Law, and Public Policy (Oxford Univ. Press 2010) and Dawn Clark Netsch: A Political Life (Northwestern Univ. Press 2010).
Chapter 12: The Entry of Women into Wall Street Law Firms: The Story of Blank v. Sullivan & Cromwell
By Cynthia Grant Bowman
Chapter Summary
Cynthia Grant Bowman's chapter discusses the history of discrimination against women in the legal profession and the litigation in the early 1970s that finally forced Wall Street firms to hire as lawyers. This litigation campaign was planned and carried out by students from NYU and Columbia law schools, who were represented by the Columbia legal clinic's Employment Law Project in their Title VII cases against ten major Wall Street law firms. It focuses on the most aggressively contested suit – that brought by NYU law student Rebecca Blank against the powerful firm Sullivan & Cromwell – presenting that litigation as a clash between the cultures of the Old Guard and the new generation of women lawyers, presided over by the first African American woman judge on the federal district court, Constance Baker Motley. The chapter also evaluates the apparent success of the 1970s litigation, describing continuing obstacles to the entry of women into the legal profession, ones less tractable to suits in a court of law.
Questions for Discussion of Chapter 12:
1. Did the activism of women law students of this era surprise you?
2. What current struggles about gender bias in the legal profession might law students engage in and attempt to organize today? If you wanted to start, how might you do so?
3. Were you surprised that the defense sought to have Judge Motley recuse herself? How do you assess her response?
Suggested Further Reading
1. Leslie Bender, Sex Discrimination or Gender Inequality?, 57 Fordham L. Rev. 941 (1989) (critiquing big law firms' institutional and cultural values, which require women to conform to male expectations and predictions of success and subjugate women who choose not to or cannot conform to "mommy track" career paths).
2.Cynthia Grant Bowman, Women in the Legal Profession, 1920–1970s: What Can We Learn from Their Experience about Law and Social Change?, 61 Me. L. Rev. 1 (2009) (chronicling the history of women in the legal profession after women gained admittance to the bar in every state but prior to the passage of civil rights law forcing law firms to admit women to practice on equal terms with men).
3. Cynthia Fuchs Epstein, Robert Saute, Bonnie Oglensky & Martha Gever, Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession, 64 Fordham L. Rev. 291 (1995) (investigating the impact of the changes in the economy and the legal profession on women's mobility and considering whether women encounter a "glass ceiling").
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*Unreported Case
Stacy L. Leeds is Professor of Law and Director of the Tribal Law and Government Center at the University of Kansas School of Law. Leeds began her law teaching career at the University of Wisconsin School of Law where she served as a William H. Hastie Fellow. She has received several awards for her teaching, scholarship and service including the Alphonse Fletcher, Sr. Fellowship (2008), the Clyde Ferguson Award (AALS Section on Minority Groups 2006), and the Immel Award for Teaching Excellence (2005). She received her degrees from Washington University in St. Louis (B.A.), the University of Tulsa College of Law (J.D.), and the University of Wisconsin School of Law (LL.M.). Leeds is a former Cherokee Nation Supreme Court Justice, the only woman and youngest person to have served in that capacity. She has also served as a judge and consultant for several other tribal governments including: Prairie Band Potawatomi Nation, Muscogee (Creek) Nation, Kickapoo Tribe of Oklahoma, Kaw Nation, and Turtle Mountain Band of Chippewa Indians. She is a citizen of the Cherokee Nation.
Chapter 13: A Tribal Court Domestic Violence Case: The Story of an Unknown Victim, an Unreported Decision, and an All Too Common Injustice
By Stacy L. Leeds
Chapter Summary
Stacy Leeds, a member of the Cherokee Nation, a law professor, and a tribal judge who is often asked to sit on cases for other tribes, interweaves her own experience from the bench with the tale of a domestic violence case involving a Native American woman whose name is unknown in an unreported tribal court order of protection matter.
Like the story Leeds tells of the case before her, many women's stories of involvement with the law are not famous or well-known. This case typifies many women's experiences of anonymity and invisibility in the legal system and the thousands of cases involving women that happen every day. These "everyday" cases may litigate matters that determine life and death for the women involved. This story is included as the final chapter in the book because consideration of stories of women and the law must recognize the significance of these cases as well.
Leeds explains how professional colleagues often advise lawyers who are women of color, to just say "no" to the multiple demands they face because of their presence as minority lawyers, professors, and judges. Leeds reports how difficult saying "no" has been for her, when faced with the overwhelming needs of students, her law school, tribes, and the many communities who look to her for service. Yet in one brief moment in tribal court, when as a judge, her life intersected with a domestic violence survivor, she had to say "no" three times. She expresses her sadness at the interface of tribal law and U.S. law that led to this result. In exploring the story of both the litigant and her experience as a judge, Leeds reveals the many faces of women in the legal system.
Questions for Discussion of Chapter 13:
1. Did Stacy Leeds' message about learning to say "no" resonate with your own experience? She writes of her self-expectation of being a "difference maker." Do you share that expectation? Do you have to give up that role to become a lawyer or a judge?
2. Why isn't knowledge of Indian law a greater part of legal education?
3. Consider this chapter with Castle Rock and the story of Jessica Gonzales. What lessons emerge from these two chapters about the role of law in the area of domestic violence?
4. Did Leeds cross an ethical line when, in her role as a judge, she gave advice after issuing the order? Would you have handled the situation differently? What attitudes might contribute to your view? As chapter 12 explained, litigants and observers may presume that female judges favor women in sex discrimination cases. Similar presumptions operate in child custody, divorce, and domestic violence situations. In contrast, these same actors presume that white male judges will be fair to all parties and blind to gender and race. What do these attitudes reveal about societal attitudes toward judges and judging?
Suggested Further Reading
1. Sue Davis, Do Women Judges Speak in a Different Voice — Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit, 8 WIS. WOMEN'S L.J. 143 (1992/93) (questioning whether women judges will change the nature of law and the legal process or simply conform to male norms and rules of legal tradition).
2. Rebecca A. Hart & M. Alexander Lowther, Honoring Sovereignty: Aiding Tribal Efforts to Protect Native American Women from Domestic Violence, 96 Cal. L. Rev. 185, 199 (2008) (analyzing the roles of tribal, state and the federal governments in preventing and responding to the unique domestic violence issues facing Native American Women).
3. Stacy L. Leeds, Defeat or Mixed Blessing? Tribal Sovereignty and The State of Sequoyah, 43 Tulsa L. Rev. 5 (2007) (discussing the positive consequences of the United States habitual breaking of treaties with American Indian tribes and chronicling the statehood of Oklahoma and the failed attempt to create the State of Sequoyah).
4. Amanda M.K. Pacheco, Overcoming the Jurisdictional Maze to Protect Native American Women from Sexual Violence, 11 J. L. & Soc. Challenges 1 (2009)(outlining how Native American women fall into a "jurisdictional gap" and covering how traditional Native American legal systems dealt with criminal law specifically murder)
5. Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Cal. L. Rev. 799 (2007)(analyzing the tribes as illiberal actors so to address Indian nation's sovereign status, which can impact their ability to live and govern illiberally and focusing on the legal and historical roots of tribal sovereignty and tribes' complicated legal status).
6. Tom Tso, Indian Nations and the Human Right to an Independent Judiciary, 3 N.Y. City L. Rev. 105 (1998)(highlighting United States and Indian-nation history in the development of Indian-nation law and proposing a new legal approach).
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Feminst Legal Theory Second Edition Chapter 3 Wages
Source: https://law.scu.edu/socialjustice/women-and-the-law-stories-book/