Undoing Race? Reconciling Multiracial Identity with Equal Protection

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Essay, I explore the potential impact of multiracialism — and multiracial identity in particular — on the future of racial classifications under equal protection doctrine.As a framework for its analysis, the Essay invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the common normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may lend more support to policies of racial self-identification and the recognition of a unique multiracial identity. A looming danger, therefore, is that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race may exploit multiracialism to “undo” race and to undermine the use of racial classifications altogether.In response to that possibility, this Essay argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in preventing racial subordination. Where possible, the law should accommodate multiracial individuals who wish to define their own racial identity, but as long as it remains more aspirational than realistic, the individual’s perception of race should not be used or manipulated to undermine the use of racial classifications to counter societal race discrimination

A Dilemma of Doctrinal Design: Rights, Identity and the Work-Family Conflict

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to exercise the rights now possessed in practice; and the identity conflict faced by those struggling to be both the ideal parent and the model employee. In this piece, I argue that the Court’s rights-driven framework is better limited to first-generation questions of exclusion and overt discrimination. The rights-based paradigm, focused on individual entitlements and freedoms grounded in constitutional law, is not particularly instructive — and may actually be counterproductive — in thinking about how to actually structure one’s life or re-conceptualize one’s identity after making the decision to have a child. Four elements of the doctrinal rights-based framework in particular frustrate these aims: an overpowering emphasis on individual autonomy; its focus on enabling women to operate in a man’s world; the assumption of a uniform set of goals and priorities shared by all women; and its narrow, individualized accommodation of pregnancy. Given their fundamental nature to first-generation legal victories, these elements have been internalized not only legally but also culturally; as a result, they have spilled over into current policy debates. In that context, they are not only unhelpful but may actually have a negative influence in resolving second-generation problems. Doctrine tells us much about what we are or are not entitled to and how others are forbidden from treating us, but little about who we are or want to be as individuals; the former may be necessary but is not sufficient to determine the latter. The paradigm underlying such foundational rights may therefore be ill-suited to answer many of the questions that lie ahead. Law still has an important role to play in evolving the workplace and changing cultural norms, but future policies would be well-served by following a set of guiding principles that are responsive to, and not derived from, the rights-based framework

The Free Exercise of Religious Identity

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, to participate in health insurance plans that cover certain contraceptive devices. While not always successful, these claims have typically been recognized by courts as claims of religious exercise under the Free Exercise Clause. This Article draws on past work suggesting that the law should protect the individual\u27s right to define and pursue one\u27s own identity within a more limited, internal sphere, but that law, and not identity, should govern relationships among individuals and groups in society. It argues that these claims might be viewed as analogous to other identity-based claims and, as a result, subjected to similar limitations. The U.S. Constitution does and should protect the individual\u27s ability to define one\u27s own religious identity, engage in practices that reinforce that identity, and determine how one relates to the law (which may sometimes necessitate accomodation). It should not, however, be understood to protect identity when projected outward, onto non-identifying individuals or the government in its regulation of others. Thus, protective claims of religious identity, which aim to protect identity as a personal matter - exercised with an eye toward the individual or religious community - should fall within the ambit of the Free Exercise Clause. Projective claims of religious identity, however - those that attempt to impose one\u27s identity on others, dictate how the law relates to non-identifying individuals, or conform the law or government practices to one\u27s internal conception of identity - should not be cognizable as constitutional claims. The protective-projective distinction is consistent with underlying themes in the Court\u27s free exercise jurisprudence and may help to cabin claims like those described above without minimizing the significance of religious identity

An Empirical Assessment of Georgia\u27s Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof. In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue. Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence. Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment

Keeping \u3cem\u3eGideon\u3c/em\u3e\u27s Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants.This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts. Viewed in that light, indigent misdemeanor defendants denied counsel may not suffer from a Sixth Amendment violation under the law as it stands, but they are deprived of meaningful access to the courts on the basis of wealth. It suggests that reconceputalizing the plight of misdemeanor defendants through the lens of due process and equal protection may help to identify the most effective judicial and legislative solutions to the crisis of “assembly line justice.

Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia

In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to counsel.” Mr. Bright and Ms. Lucas describe Georgia’s public defender system and its failings, as well as the impact it is having on individual defendants. They then explore how “the federal government can play a role in remedying Georgia’s failure to enforce the right to counsel.” They conclude that “[u]nless the federal government enforces the right to counsel through measures requiring states like Georgia to fundamentally reconceive the way in which they provide indigent defense services, it is unlikely that those states will ever meet their constitutional responsibilities. The cost will be enormous in terms of wrongful convictions, uninformed sentencing, and a criminal justice system that lacks both credibility and legitimacy.

Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia

In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to counsel.” Mr. Bright and Ms. Lucas describe Georgia’s public defender system and its failings, as well as the impact it is having on individual defendants. They then explore how “the federal government can play a role in remedying Georgia’s failure to enforce the right to counsel.” They conclude that “[u]nless the federal government enforces the right to counsel through measures requiring states like Georgia to fundamentally reconceive the way in which they provide indigent defense services, it is unlikely that those states will ever meet their constitutional responsibilities. The cost will be enormous in terms of wrongful convictions, uninformed sentencing, and a criminal justice system that lacks both credibility and legitimacy.

Reclaiming Equality to Reframe Indigent Defense Reform

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance and its inability to directly address issues of underfunding or to prospectively set substantive standards for indigent defense representation. This Article argues that the reincorporation of equality principles - rooted in the fundamental right of access to the courts - into indigent defense reform can address some of the doctrinal gaps left by the more traditional Sixth Amendment approach and provide a conceptual framework that targets the root causes of systemic indigent defense failures. An approach grounded in equal access and not solely on the vindication of the right to counsel allows reformers to: attack issues of resource allocation directly without filtering them through the lens of attorney conduct, reach resource inequities beyond the provision of counsel, prospectively define substantive elements of a meaningful defense, and clear a more direct path to necessary normative judgments about what those elements must be. The choice to reclaim equality as a basis for indigent defense reform recognizes that unequal access to resources precludes the enforcement of substantive rights and forces a decision between the commitment to access for justice to all or only for those who can afford it