The Principle and Practice of Women\u27s Full Citizenship : A Case Study of Sex-Segregated Public Education

For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court\u27s most recent sex discrimination opinions, United States v. Virginia, purports to provide more coherent guidance. Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women full citizenship stature or create[s) or perpetuate[s) the legal, social, and economic inferiority of women. Yet the opinion does not begin to indicate how the sex discrimination jurisprudence might implement this new standard. In particular, it does not tell us how to determine whether any specific practice deprives women of full citizenship or maintains their inferiority. The answer to this question is far from obvious. Indeed, even the large legal literature that has long argued that constitutional law enforcing the Equal Protection Clause should be structured around a commitment to combating subordination provides us with relatively little guidance. This literature would seem to have concerns importantly aligned to those that Virginia articulates. But it ultimately does not teach us much about how to identify the practices that undermine women\u27s full citizenship or sustain their inferiority. This Article attempts to give some content to the framework that Virginia presents. More specifically, it explores how analyzing the historical record of a practice can inform an investigation into whether, when, and why that practice is consistent with women\u27s full citizenship stature or operates to perpetuate their legal, social, and economic inferiority

Mitigation and the Americans with Disabilities Act

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He applies for a job that has been structured for people who can see clearly and asks the employer to purchase work equipment (like a new computer) that will enable him to perform the job with limited eyesight. Purchasing this equipment will be costly, and the employer asks why it should have to bear those costs when the applicant could have surgery to enable him to see better. The question raises a core issue of rights and responsibilities under a civil rights law. But Title I of the ADA, which protects a qualified individual with a disability from employment discrimination based on his disability, never indicates whether there is a duty to mitigate, either by undergoing medical procedures, using medication, pursuing physical therapy, losing weight, abstaining from alcohol and cigarettes, or taking other measures to improve health and eliminate obstacles to employment. The Supreme Court has not yet considered the question, and legal commentators have all but ignored it. The few lower courts to address a duty to mitigate under Title I are divided on whether mitigation should be required, and those in favor of the duty have not developed a clear standard for when that duty should apply. To the extent that the decisions supporting a duty to mitigate imply any principle for implementing the duty, most appear to suggest that Title I plaintiffs are obligated to mitigate whenever mitigation is possible. I reject both extremes of the existing debate. This Article argues that plaintiffs seeking Title I protection should be under a duty to mitigate, but that this duty should require plaintiffs to pursue only those mitigating measures that could reduce their need for workplace accommodation and that a reasonable person in the same situation would pursue

Intimacy and Economic Exchange

The current legal debate about the regulation of economic exchange between intimates mistakenly assumes that the law does not countenance such exchange to any notable extent. This assumption is so widely held that it unites otherwise disparate anticommodification and pro-market scholars. Both groups agree that the law maintains a strict boundary between economic exchange and intimacy, and disagree only on whether to applaud or criticize that boundary. Both overlook or underemphasize the degree to which the law already permits economic exchange within intimate relationships. The current debate\u27s focus on whether the law should enforce economic exchanges between intimates misses at least three critical questions: how the law already regulates such exchanges, for what purposes, and with what consequences. One of the primary ways that the law constitutes an intimate relation as intimate - recognizes its dignity and distinguishes it from other relationships - is by regulating how economic resources are exchanged within the relationship. But efforts to denote the sanctity of intimate relationships through the regulation of economic exchange appear to systematically perpetuate and exacerbate distributive inequality for women and the poor. These distributive consequences suggest a need to reexamine and reform how the legal system establishes the specialness of an intimate relationship. This Article begins that project

Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women\u27s military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women\u27s legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, and the public has become more enthusiastic about women\u27s military service, including in combat. This Article brings long overdue attention to the record of women\u27s legal status in the military in order to make three broad theoretical and historical points. First, women\u27s continued exclusion from registration, draft eligibility, and some combat positions undermines the common assumption that legalized sex inequality has faded into history. Second, the record of women\u27s legal status in the military helps illuminate how extrajudicial events can shape the Supreme Court\u27s constitutional interpretation and then render that interpretation much less plausible over time. Rostker reflected contemporaneous understandings of sex equality. The extrajudicial transformation in women\u27s military role since Rostker has undercut the factual premises and cultural assumptions behind Rostker\u27s interpretation of constitutional equal protection, making clear that Rostker is inconsistent with the rest of the Court\u27s sex discrimination jurisprudence. Third, and most strikingly, the record of women\u27s legal status in the military illustrates how extrajudicial actors can develop and enforce their own evolving understanding of sex equality norms, sometimes becoming a more important source of those norms than courts. The extrajudicial transformation in women\u27s military role has shifted the foundational normative commitments that shape the evolving meaning of constitutional equal protection. This transformation makes limits on women\u27s military service that seemed just and reasonable in the 1970s and 1980s, even to many proponents of sex equality in constitutional and statutory law, now appear increasingly wrong, inequitable, and invidious. Over time, that shift in perspective is likely to affect demands for further change and judgments that both courts and extrajudicial decisionmakers reach about how the Constitution\u27s open-textured language of equal protection applies to specific questions about women\u27s military role. The Article concludes by exploring some of the practical consequences of the extrajudicial shift in perspective on women\u27s military service

Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality

Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions. The argument posits that women and people of color attempting to secure expanded rights and opportunities do not understand their own best interests and do not realize that they benefit from limits on their prerogatives and choices. Indeed, proponents of this argument insist that restricting the rights and opportunities available to women and people of color helps everyone: the people misguidedly seeking more rights and opportunities, the people opposing those claims, and society as a whole. The beguiling conclusion is that the law need not decide between conflicting demands because all parties share aligned interests. I call this effort to assert social solidarity in the face of social conflict the mutual benefits argument

Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality

Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions. The argument posits that women and people of color attempting to secure expanded rights and opportunities do not understand their own best interests and do not realize that they benefit from limits on their prerogatives and choices. Indeed, proponents of this argument insist that restricting the rights and opportunities available to women and people of color helps everyone: the people misguidedly seeking more rights and opportunities, the people opposing those claims, and society as a whole. The beguiling conclusion is that the law need not decide between conflicting demands because all parties share aligned interests. I call this effort to assert social solidarity in the face of social conflict the mutual benefits argument

Intimacy and Economic Exchange

The current legal debate about the regulation of economic exchange between intimates mistakenly assumes that the law does not countenance such exchange to any notable extent. This assumption is so widely held that it unites otherwise disparate anticommodification and pro-market scholars. Both groups agree that the law maintains a strict boundary between economic exchange and intimacy, and disagree only on whether to applaud or criticize that boundary. Both overlook or underemphasize the degree to which the law already permits economic exchange within intimate relationships. The current debate\u27s focus on whether the law should enforce economic exchanges between intimates misses at least three critical questions: how the law already regulates such exchanges, for what purposes, and with what consequences. One of the primary ways that the law constitutes an intimate relation as intimate - recognizes its dignity and distinguishes it from other relationships - is by regulating how economic resources are exchanged within the relationship. But efforts to denote the sanctity of intimate relationships through the regulation of economic exchange appear to systematically perpetuate and exacerbate distributive inequality for women and the poor. These distributive consequences suggest a need to reexamine and reform how the legal system establishes the specialness of an intimate relationship. This Article begins that project