Localities as Equality Innovators

This Article thus argues that instead of regarding cities and localities that, like Seattle and Louisville, try to develop serious solutions to existing racial disparities as bad cities no different from those whose notorious policies spurred the civil rights movement of the 1950s and 1960s, we should be regarding them as potential equality innovators.” Their on-the-ground experience with the realities of race and its operation in the twenty-first century arguably places them in a better position than courts to develop innovative approaches to the structural racial inequities with which so many municipalities must grapple. Existing doctrine limits dramatically the ability of courts to confront in any meaningful way how localities and the people that inhabit them actually navigate race

Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage

Conversations about the constitutionality of prohibitions on marriage for same-sex couples invariably reduce to the question of whether a meaningful analogy can be drawn between restrictions on same-sex marriage and antimiscegenation laws. In an effort to refocus this debate, this article considers the California Supreme Court\u27s 1948 decision in Perez v. Sharp and its use by advocates in recent litigation to secure marriage rights for gay and lesbian couples. Opponents of marriage rights for members of the LGBT *840 community frequently assert that dispatching Perez in these cases distorts the meaning of that decision and other similar precedents by drawing a false analogy between bans on interracial and same-sex marriage. Professor Lenhardt argues that, instead, Perez\u27s appearance in recent cases helps to clarify the nature of the marriage rights at stake in Loving v. Virginia. She also contends that the strategic use of Perez serves to underscore the extent to which state antimiscegenation laws established not only racial, but also gender-based identity norms. Finally, Professor Lenhardt asserts that Perez\u27s use in recent marriage cases offers a way out of the “analogy” debate, focusing discussion on the nature and substantive effect of race and gender bars on marriage, rather than on a comparison of the groups seeking judicial redress for such restrictions. Professor Lenhardt concludes that a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging can elucidate the true implications and citizenship effects of prohibitions on marriage for same-sex couples

Race Audits

The U.S. Supreme Court’s race jurisprudence suffers from a stunning lack of imagination where possibilities for meaningful local government involvement in combating structural racial inequality are concerned. Cases such as Parents. and Ricci limit dramatically the freedom that localities have to address racial inequity within their borders. Instead of constraints on local efforts in the race context, Professor Lenhardt argues that what we need, if persistent racial inequalities are ever to be eliminated, is greater innovation and experimentation. In this article, Professor Lenhardt thus introduces an extra-judicial tool called the race audit, which would permit individual cities or a regional coalition of localities voluntarily to determine the extent to which their governmental systems and policies create, enable, or perpetuate inequitable conditions for racial minorities. This tool, grounded in the tenets of structuralism, breaks from traditional audit mechanisms in the race context by eschewing a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that generate cumulative racial disadvantage across domains, time and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit’s main goal – which falls outside the reach of most existing tools for measuring discrimination – would be achieved through the work of a “community of inquiry” consisting of academics, philanthropic organizations, non-profits and civil rights groups, governmental agencies, and business leaders charged with assessing the segregative effects of the locality’s policies and programs. The race audit process, whose results might be similar to those produced by truth and reconciliation commissions, would produce a counter-narrative about race in metropolitan areas whose telling would have numerous benefits, including generating more effective remedies for addressing structural discrimination, and promoting democratic conversations about equality and what is necessary to secure belonging at the local level. Most of all, the race audit would make apparent the deep potential cities have for being important “equality innovators.” designed to identify the sources of persistent racial inequality that can be productively deployed by localities. This tool, grounded in the tenets of structuralism, eschews a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that create cumulative racial disadvantage across domains, time, and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit process, in addition to highlighting the capacity of localities to be important change agents, would help produce a counternarrative about race and the seeming naturalness of the racial segregation and disadvantage now evident in urban and suburban areas alike. The Author contends that, in doing so, the race audit would identify better, more effective strategies for alleviating structural racial inequality. Situating the race audit proposal in a larger project on the commitments underlying civil rights advocacy more broadly, she highlights the potential that the race audit and other innovative tools might have to spur democratic conversations about race and the conditions necessary for belonging at the local level; generate a thicker, more substantive account of equality than has thus far been forthcoming in U.S. Supreme Court cases; and reconcile the perceived tensions between notions of equality and liberty in the area of race

The Color of Kinship

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

A Legacy of Teaching

In this essay, Professor R.A. Lenhardt describes the lasting educational legacy of Professor Derrick Bell. Using a Bell article entitled “Humanity in Legal Education” as its starting point, the essay explores Bell’s emphasis on social justice and “conscience” in legal instruction. In particular, it discusses the impact that Bell’s unique approach to teaching law had on students enrolled at Harvard Law School in the 1990s, where Professor Bell taught before a much publicized protest leave

Marriage as Black Citizenship?

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships—gay or straight. Nonmarriage might do just as much, if not more, to advance black civil rights. Part I explores marriage’s role in racial subordination by looking at the experiences of African Americans, as well as Native Americans, Puerto Ricans, and Asian Americans. Drawing on institutional structure analyses, it then considers how legal marriage has “married” Blacks to second-class citizenship. Part II explores the current place of marriage in African America. It argues that, while the regulation of black loving relationships today differs dramatically from what we saw in earlier times, family law often has a punitive effect on such American families. Part III contemplates the benefits of adopting a focus on nonmarriage. It contends that meeting black families where they are holds the most potential for progress in addressing the structural barriers to success faced by those families. The Article ends with a “call to action” for legal scholars and others concerned about black families and citizenship. It maps a broad agenda for exploring in earnest the potential that supporting and valuing the existing networks, arrangements, and norms regarding gender and caretaking in African America has for promoting black citizenship and equality in the twenty-first century

Foreword

This Foreword provides an overview of Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Center on Race, Law & Justice. Even fifty years later, Loving provides ample foundation for an inquiry into the operation of race and racial inequality in the United States, which touches on the queries outlined above, as well as many others. In our view, a symposium focused on Loving makes a significant contribution by deepening scholarly analysis of that decision and by explicating the kinds of issues and concerns that should be at the heart of research concerning racial equality today

Parenting While Black

Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs of danger facing Black and Brown families. To that extent, the concerns of families, like my grandmother’s, should be at the center of our discussion around families and the challenges they face in this moment. This Essay intervenes in the conversation hosted by the Fordham Law Review by focusing on issues of race, which, as I have indicated elsewhere, remain underexplored in family law scholarship.1 More specifically, it endeavors to give greater context to the term “parenting while Black,” which I utilized in the narrative that launched this iniquity. In the wake of George Floyd’s death at the hands of police in 2020,2 people of all walks of life are all too familiar with the phrase “driving, or even walking, while Black.”3 These phrases reference the scores of Black and Brown people killed or badly injured at the hands of white law enforcement officers, often when the need for such action was plainly unwarranted.4 In deploying the term “parenting while Black,” I mean to invoke not only the criminal justice context, but also all the systems that inform the functioning and well-being of families of color. Enumerating such systems provides us with a deeper appreciation of the obstacles that parents of color must navigate in trying to provide for their children