Category Archives: Race

Washington Post Op-Ed on Affirmative Action

I have an op-ed in the Washington Post today, coauthored with Erwin Chemerinsky, Dean at UC Berkeley School of Law. An excerpt:

Given the many ways that affirmative action benefits Asian American students and their communities, we should see conservative solicitude for Asian Americans “harmed” by affirmative action as strategic rather than genuine. Conservative opponents of affirmative action have not, generally speaking, taken an interest in other issues that affect Asian American welfare in unique ways, ranging from employment discrimination to health care to immigration.

So why the conservative concern when it comes to affirmative action? The answer is that Asian Americans provide a convenient tool for opponents of affirmative action.  By framing opposition to affirmative action as concern for Asian Americans, opponents of affirmative action can protect the existing racial hierarchy — with white people at the top — while disguising their efforts as race-neutral rather than racially motivated.

We suspect that Asian Americans will see through this clumsy and cynical attempt to deploy them in service of dismantling affirmative action. And at least for the time being, the Supreme Court has been clear that affirmative action policies are constitutional. But if anything, anti-affirmative action efforts demonstrate the need for racial diversity. One way to improve upon the shallow racial understanding of affirmative action opponents is to ensure diverse educational environments that promote clear thinking and honest conversation about racial issues.

Ohio State Law Journal Symposium

I am so pleased to be at Ohio State to speak at the Ohio State Law Journal’s symposium, “The Expanding First Amendment.” I will argue that the First Amendment doesn’t protect the right for platform economy hosts, such as those who rent their properties on Airbnb or VRBO, to discriminate on the basis of race or other protected characteristics. A draft of the paper I plan to publish with the journal’s symposium edition is available on SSRN.

Published: “The Misuse of Asian Americans in the Affirmative Action Debate”

I have a short essay called “The Misuse of Asian Americans in the Affirmative Action Depate” just out in the UCLA Law Review Discourse — the online companion to the UCLA Law Review — about the way opponents of affirmative action have attempted to leverage Asian American identity and experience in support of their position. Of course, some Asian Americans do oppose affirmative action, as is to be expected in a large and very heterogeneous community, but the larger point of my essay is that the claim that “Asian Americans” are “harmed” by affirmative action is not supported.

“The New Public Accommodations”: forthcoming in Georgetown Law Journal

Very pleased to announce that my article “The New Public Accommodations,” coauthored with Aaron Belzer, will be published in the Georgetown Law Journal in 2017. The piece discusses race discrimination in the sharing economy; all feedback is warmly welcome.

New on SSRN: “The New Public Accommodations”

A full draft of my article “The New Public Accommodations,” coauthored with Aaron Belzer, is now available on SSRN. Here’s the abstract:

The sharing economy raises important new questions about public accommodation laws. Such laws originally were enacted to prohibit establishments open to the public—for example, hotels, restaurants, taxi services, and retail businesses—from discriminating on the basis of characteristics such as race, color, religion, and national origin. Sharing economy businesses are functional substitutes for these traditional public accommodations. Yet existing public accommodation laws are not always a good fit for the unique features of the sharing economy.

This Article is the first to argue that public accommodation laws must evolve to address race discrimination in the sharing economy. Available evidence suggests that, in many circumstances, race discrimination affects the sharing economy in much the same way it affects the traditional economy. Sharing economy businesses use online platforms to connect providers of goods and services (drivers; landlords) with users of those goods and services (passengers; renters). These platforms often make race visible to both providers and users by requiring that they create profiles that include names, photographs, and other information. Such profiles may trigger conscious and unconscious bias and result in discrimination even if the parties never meet in person. Moreover, sharing economy businesses encourage or even require providers to rate users. Rating systems aggregate biases, and users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

This Article examines existing public accommodation laws—Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the Fair Housing Act—and concludes that they hold considerable promise for remedying discrimination in the sharing economy. Nonetheless, the sharing economy presents new issues that existing laws do not entirely address. To the extent that sharing economy businesses perform the same function as traditional public accommodations yet escape existing laws, we argue that those laws should be amended and briefly describe the form the new laws should take.

Feedback is very much welcome–please feel free to contact either me or Aaron.

In Progress: The New Public Accommodations

I’m still taking a break from blogging while I continue to try to fully resolve my hand issues. I have, however, posted a short summary of my work in progress relating to race discrimination in the sharing economy on SSRN. The piece is called “The New Public Accommodations.” Feedback is welcome, and if you would like to see a longer draft in progress — one I’m not quite ready to post publicly — please feel free to email me.

My New York Times Piece: “Racial Fluidity and the Value of Race”

I have a piece in the New York Times called “Racial Fluidity Complicates the Value We Assign to Race.” I link racial fluidity to the framework for assigning racial value that I discussed in my previous article “Racial Capitalism,” with a brief mention of Rachel Dolezal. (I am feeling pretty done with Rachel Dolezal, but as I wrote the piece it seemed odd not to mention her.) My piece is part of a “Room for Debate” including six essays on the topic of racial fluidity. Comments welcome, as always.

This Is Not a Post About Rachel Dolezal

This is not a post about Rachel Dolezal, the president of the Spokane NAACP whose story has received a great deal of attention in the media over the last few days. For anyone who is not entirely familiar with the story, the claim in a nutshell is that Dolezal has presented herself as black to the community for the past decade or so via her appearance and behavior, but was recently described by her parents in an interview as entirely “of Caucasian and European descent.”

A great deal of interesting commentary has examined Rachel Dolezal’s behavior. I recommend this Washington Post piece by Professor Osamudia James (Miami Law), this piece in Slate by Jamelle Bouie, and this interesting exchange between Latoya Peterson and Danielle Henderson on Fusion. For scholarly work discussing people who pass from white to black or who attempt to choose a racial identity, I recommend “Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification,” by Professor Camille Gear Rich (USC Law), and this fascinating article by Professor Robin Kelley (UCLA History) about Grace Halsell. Continue reading

The RightsCast, Episode 11, Part 1: Professor Osamudia James, “White Like Me”

The RightsCast is back! I’m thrilled to present Part One of an episode featuring Osamudia James (Miami Law) discussing her recent NYU Law Review article “White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation.” The article is a fascinating look at the way that the diversity rationale for affirmative action — as opposed to some other possible rationales — actually inhibits the formation of anti-racist white identity. Part Two of the episode will be available next week.