White Injury and Innocence: On the Legal Future of Antiracism Education

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multiculturalism were not. The vulnerability of antiracism education to constitutional censure is the most recent illustration of how far antidiscrimination law has gone not in undercutting, but further entrenching, racial hierarchy in the United States. The legislative, litigation, and curricular wars surrounding antiracism education also remind us that race is significant for reasons that go beyond materiality. Rather, legal and social discourse about racism shapes notions of racial injury and ultimately impedes efforts to respond to even the material consequences of enduring racial inequality. Tracking and analyzing the anti-antiracism legislation and lawsuits provides those who are willing to follow it a map both to where antidiscrimination law must be changed, and to where antiracism education is most needed

Superior Status: Relational Obstacles in Law to Racial Justice and LGBTQ Equality

Animus and discrimination are the two legal lenses through which in-equality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable po-litical conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or con-cede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public school integration and same-sex marriage threatened status hierarchies primarily favoring white people in the former, and straight white males in the latter. Thus, both movements pre-sent opportunities to consider how education and marriage work to secure status, examine how the two “successful” equality movements actually preserved and created new opportunities for superordinate groups to maintain superior status, and theorize how law might better account for retrenchment demanded by the status-privileged

Breaking Free of Chevron's Constraints: Zuni Public School District No. 89 v. U.S. Department of Education

This is the published version

Superior Status: Relational Obstacles in the Law to Racial Justice and LGBTQ Equality

Animus and discrimination are the two legal lenses through which inequality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable political conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or concede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public school integration and same-sex marriage threatened status hierarchies primarily favoring white people in the former, and straight white males in the latter. Thus, both movements present opportunities to consider how education and marriage work to secure status, examine how the two “successful” equality movements actually preserved and created new opportunities for superordinate groups to maintain superior status, and theorize how law might better account for retrenchment demanded by the status-privileged

The Innocence of Bias

A Review of Biased: Uncovering the Hidden Prejudices that Shapes What We See, Think, and Do. by Jennifer L. Eberhardt