Category Archives: Race

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.

“Identity Entrepreneurs” Reviewed on JOTWELL

Ruthann Robson (CUNY) has a generous and very helpful review of my article “Identity Entrepreneurs,” forthcoming in the California Law Review, out in JOTWELL today. I appreciate the feedback and invite comments from others.

Khaled Beydoun on Reciting the Pledge of Allegiance in Arabic

Khaled Beydoun (Barry) has a thoughtful analysis of the controversy over reciting the Pledge of Allegiance in Arabic. He traces the reaction to Islamophobia; it’s highly recommended reading.

I interviewed Khaled for Episode 4 of The RightsCast, “Legal Construction of Arab American Identity,” during which we touched on some of the same themes relating to discrimination against Arab Americans. Watch here:

The RightsCast, Episode 6: Andrew Ferguson, Big Data and Reasonable Suspicion

In this week’s episode of The RightsCast, I interview Professor Andrew Ferguson (UDC Law) about his article “Big Data and Predictive Reasonable Suspicion,” which is forthcoming in the University of Pennsylvania Law Review. It’s a fascinating conversation about the way that big data and emerging technology are changing the way that police interact with citizens and, as a result, Fourth Amendment doctrine. Enjoy!