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May 19, 2017

Guest Blogging on Concurring Opinions about Whiteness, Class, Rurality

I've been guest blogging for the past few weeks over at Concurring Opinions and invite you over to that blog, on "the law, the universe, and everything" to see what I've been writing.  I've done a four-installment review/commentary on J.D. Vance's Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.  Spoiler Alert:  I'm not a big fan but, in the end, suggest that the book can help law profs better understand the low-income white students who (thankfully, yes, thankfully!) show up in our classrooms from time to time.  My posts are:

On Donald Trump, J.D. Vance, and the White Working Class

Hillbilly Elegy as Rorschach Test

The "Shock and Awe" Response to Hillbilly Elegy:  Pondering the Role of Race

On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

I've also done a bit of writing about rurality, with these posts:

Rurality and Government Retreat

Local Journalism as Antidote to Echo Chambers and Fake News

Also related to rurality are these posts about spatiality and abortion access. 

Did You Hear the One About the Alaska Legislator Who Said ... 

Sanger's Tour de Force on Abortion (with a Blind Spot for Geography)

Carol Sanger of Columbia Law responded to my post about her new book, About Abortion:  Terminating Pregnancy in the 21st Century, here.  I love the fact she says I get the "last word" in our exchange over the significance of geography.

I expect to post another item or two before my term as a guest blogger expires in about a week. 

April 8, 2016

CAPALF 2016 at UC Davis School of Law

The School of Law is proud to host the 2016 Conference of Asian Pacific American Law Faculty (CALALF) at King Hall today and tomorrow. There is a new addition to an already outstanding speaker line-up: California Supreme Court Justice Goodwin Liu.

Here is the program from the CAPALF website.

Keynote Speakers & Distinguished Guests

Justice Goodwin Liu  | Associate Justice
Supreme Court of California

Simon (Young) Tam | The Slants

Angela Harris | Distinguished Professor of Law & Boochever and Bird Endowed Chair
University of California, Davis School of Law

Karen Korematsu | Founder & Executive Director
Fred T. Korematsu Institute

The Honorable Rob Bonta | Assemblymember
California State Assembly

Frank Wu | Distinguished Professor of Law
University of California, Hastings College of the Law

Conference Schedule

Friday, April 8, 2016 | Room 1301

9:00 AM

Welcome Remarks

9:15 AM

Works-in-Progress Session One

10:30 AM

Coffee Break

10:45 AM














Plenary: #BlackLivesMatter and Asian Pacific Americans?

Aarti Kohli | Deputy Director of Advancing Justice
Asian Law Caucus

Linda Lye | Senior Staff Attorney
American Civil Liberties Union of Northern California

Bertrall Ross | Assistant Professor of Law
Co-Director, Thelton E. Henderson Center for Social Justice
University of California, Berkeley School of Law

Margaret Russell | Professor of Law
University of California, Santa Clara School of Law

Moderator: Rose Cuison Villazor | Professor of Law
University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Simon (Young) Tam
| The Slants

1:00 PM

Arboretum Walk

1:30 PM

















Works-in-Progress Session Two

Discussion Panel: Neo ­Pariah: Studies in the Emerging Academic Caste System in Higher Education

Angela Harris, Distinguished Professor of Law, Boochever and Bird Endowed Chair
University of California, Davis School of Law

Kieu Linh Caroline Valverde, Associate Professor
University of California, Davis, Department of Asian American Studies

Darrell Hamamoto, Professor
University of California, Davis, Department of Asian American Studies

Wei Ming Dariotis, Associate Professor
San Francisco State University, College of Ethnic Studies, Asian American Studies

Melody Yee, Bachelor of Science
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

Jing Mai, Undergraduate Student
University of California, Davis, Department of Neurobiology, Physiology, and Behavior

2:45 PM













Plenary: Islamophobia & the Lost Legacy of Korematsu

Lorraine Bannai | Professor of Lawyering Skills
Director, Fred T. Korematsu Center for Law and Equality
Seattle University School of Law

Karima Bennoune | UN Special Rapporteur in the Field of Cultural Rights
Professor of Law | University of California, Davis School of Law

Dale Minami | Partner
Minami Tamaki LLP

Shirin Sinnar | Assistant Professor of Law
Stanford Law School

Moderator: Afra Afsharipour | Professor of Law
University of California, Davis School of Law

4:00 PM

Coffee Break

4:15 PM









Plenary: Asian Pacific Americans and College Admissions

Ashutosh Bhagwat | Professor of Law
UC Davis School of Law

Marina C. Hsieh | Senior Fellow
Santa Clara Law

Dan P. Tokaji | Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law
The Ohio State University Moritz College of Law

Moderator: Anupam Chander | Professor of Law
University of California, Davis School of Law

5:30 PM

Awards Ceremony & Dinner
Guest of Honor: Karen Korematsu 

Saturday, April 9, 2016 | Room 2302

9:00 AM

Works-in-Progress Session Three

10:15 AM

Coffee Break

10:30 AM


Welcome Remarks
Dean Kevin Johnson
University of California Davis, School of LawThe Honorable Rob Bonta | Assemblymember
California State Assembly

10:45 AM






Students Plenary: Voices of the Next Generation

Stephen Chang | University of California, Berkeley School of Law

Sylvia Hsin-Ling Tsai | University of California, Davis School of Law

Steven Vong | University of California, Davis School of Law

Moderator: Uyen P. Le | Mellon Sawyer Postdoctoral Scholar University of California, Davis School of Law

12:00 PM

Keynote Address & Lunch
Distinguished Professor of Law Frank Wu
University of California, Hastings College of the Law

1:00 PM













Plenary: Latinos, Asian Pacific Americans, and Immigration

Jennifer Chacón | Professor of Law
University of California, Irvine School of Law

Bill Hing | Professor of Law
University of San Francisco School of Law

Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

Deep Gulasekaram | Associate Professor of Law
Santa Clara University School of Law

Moderator: Jack Chin | Professor of Law
University of California, Davis

2:15 PM












Plenary: Emerging Scholars

Christina Chong | Assistant Professor of Law
University of San Francisco School of Law

Andrew Kim | Assistant Professor of Law
Concordia University School of Law

Saira Mohamed | Assistant Professor of Law
University of California, Berkeley School of Law

Nancy Chi Cantalupo | Assistant Professor of Law
Barry University Dwayne O. Andreas School of Law

Moderator: Hiroshi Motomura | Susan Westerberg Prager Professor of Law
University of California, Los Angeles School of Law

 

March 4, 2016

Outcome of FBI fight with Apple will affect your privacy

Cross-posted from the Sacramento Bee.

The legal dispute between the FBI and Apple over a locked iPhone is clouded in technical details that are hard for many to understand, an unclear area of law, and a terrible tragedy in San Bernardino that provokes unease and fear.

To make matters worse, the FBI and Apple are engaged in a very public battle using open letters, blog posts and hearings before Congress with terms like patriotism, marketability and backdoors.

The outcome of the case will affect everyone's ability to keep their personal information safe on their smartphones and all their electronic devices. And it will test what limits exist on the government's ability to force unwilling and innocent third parties to help it investigate crime.

A federal judge has issued an order forcing Apple to help the FBI "unlock" the iPhone used by Syed Farook, who with his wife Tashfeen Malik, shot and killed 14 people and seriously wounded 22 in the December attack in San Bernardino.

The issue is not whether Apple should help the government in its criminal investigations; the Cupertino-based company has assisted the government many times in the past, and even in this particular investigation. Instead, Apple objects to the order issued by the judge because of the unusual nature of the request.

The government is asking Apple to create something that does not now exist: a custom-built version of Apple's operating system that would sidestep security features on the iPhone.

Without Apple's assistance, the FBI claims that it is unable to access information that exists only in the phone itself. In addition, because the iPhone would not accept this customized software update without Apple's digital signature - which would otherwise vouch for the software's trustworthiness - the court order compels Apple to do this, too.

How does this affect you? If Apple is forced to create the means to hack into its own products, the issue does not end with this case. As FBI Director James Comey confirmed in his testimony before the House Judiciary Committee on Tuesday, there are other phones that the government would like Apple to unlock.

Local police departments are also eager to seek similar orders from Apple if it loses the San Bernardino case. Indeed, the prospect of forcing Apple to create a permanent in-house hacking department for police purposes was one of the reasons a federal magistrate judge in New York on Monday denied the government's request to compel Apple to unlock an iPhone in a different criminal case involving a drug investigation.

Once Apple creates the means to bypass the security features it has created to ensure the security of the information on its phones, that software will be prized not only by law enforcement officials, but also by organized crime rings, identity thieves and foreign intelligence agencies. That's where all of our interests come in.

As the U.S. Supreme Court described them recently, smartphones could easily be described as "cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers" - all at the same time.

That leads to the second issue: the extent to which the government can force an innocent third party to create something for law enforcement purposes.

In the San Bernardino case, the government relied upon the All Writs Act of 1789, a federal law intended to provide courts with the power to issue orders to carry out their duties. The act allows a court to issue orders that are "necessary or appropriate" when "agreeable to the usages and principles of law." No one is quite sure what the outer limits of the act may be, but the Apple case is testing those limits.

Does this include the power to force Apple to create an iPhone hack?

Comey, the FBI director, argues that the San Bernardino tragedy demands it. The problem is that we don't think of law enforcement power simply in terms of its objectives or the gravity of the crime in question. In our legal system, we take the reasonability of the means into account. If Apple is compelled to do this in a terrorism investigation, must it also do so in a drug case? A prostitution case? A delinquent property tax case? What the government seeks, in the words of one friend-of-the-court brief filed by a group of technology companies Thursday, is a demand "unbound by legal limits."

The extraordinary law enforcement means of today, if left unchecked, become the routine methods of tomorrow. And if the government is permitted to compel a technology company to create deliberate vulnerabilities in a phone today, very soon it may apply that power to the growing Internet of Things: the world of Internet-connected "smart" thermostats, televisions, toothbrushes and even Barbie dolls.

Apple's loss may mean that the FBI could one day force a company to deliver malicious security updates to one of the many smart devices you will own. These are products of convenience, not general consent to government surveillance. Do we want this case to pave the way for routine compulsion of private companies to watch us through our connected devices?

We should expect that the FBI and every other law enforcement agency would want to try every means necessary to prevent and investigate crime. But when those means exact a heavy cost upon our information security and privacy, we've struck the wrong bargain.

 

November 26, 2013

Native American Poverty in Focus

Professor of Law Lisa Pruitt is also a faculty affiliate of the UC Davis Center for Poverty Research. She recently contributed to a podcast on Native Americans and Poverty.

From the Center's website:

In this edition of Poverty in Focus, visiting scholar Ezra Rosser and UC Davis Law professor and Center faculty affiliate Lisa Pruitt discuss a range of issues related to Native American Poverty, from its lack of visibility and interest for legal scholars to its causes and possible solutions. 

Rosser is a professor of Law at American University’s Washington College of Law. He has also served as a 1665 Fellow at Harvard University, a visiting scholar at Yale Law School, and a Westerfield Fellow at the Loyola University New Orleans School of Law. He has written extensively on American Indian law.

Pruitt writes about the intersection of law and rural livelihoods, considering a range of ways in which rural places are distinct from what has become the implicit urban norm in legal scholarship. She has worked with lawyers in more than 30 countries to negotiate cultural conflicts in several arenas.

Listen to the podcast at http://poverty.ucdavis.edu/post/native-american-poverty-focus.

April 23, 2012

Of Law and Self-Loathing

By Angela Harris.  Cross-posted from Concurring Opinions.

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean ”democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

March 24, 2012

Rural Women and the Limits of Law: Reflections on CSW 56

The United Nations 56th Session of the Commission on the Status of Women (CSW 56) featured as its priority theme this year "the empowerment of rural women and their role in poverty and hunger eradication, development and current challenges."  This focus on rural women is long overdue, given that rural women comprise a quarter of the world's population.  Further, women provide 43% of the world's agricultural labor, and they produce half of the world's food for direct consumption.  In fact, non-governmental organizations (NGOs) discovered some time ago that women--referred to by many as the "architects of food security"--are key agents of development.  One reason for this is that when women and girls receive income, they reinvest 90% of it in their families.  In spite of their transformative potential to reduce hunger and poverty, women own less than 2% of land worldwide and they receive less than 10% of available credit.

As one whose scholarship focuses on rural livelihoods in both the United States and abroad, I was pleased to attend three days of the two-week CSW 56 event (February 27-March 9) as an observer for the American Society of International Law. As a former gender consultant for the United Nations, I was prepared for some of what I saw (e.g., bureaucracy), but the experience also held a few surprises. One thing that intrigued me about the “Session”—which is not a session at all but a dizzying array of “high-level round tables” and other meetings, panel discussions, “side events,” and “parallel events”—is that discussion of law was relatively absent. Furthermore, relatively little of the substance of these gatherings focused on rural women in a way that went beyond adding the modifier “rural” to whatever issue was being discussed. Rather than engaging with the circumstances that often distinguish rural women’s lives from those of their urban counterparts, many of the sessions seemed merely to “add rural women and stir” in relation to a well-recognized (and admittedly very important) women’s issue (e.g., female genital mutilation, child marriage). Other sessions did take up issues more central to rural livelihoods, including spatial removal from services and agents of the state, and women’s roles in agricultural production. The lack of significant engagement with the particular challenges facing rural women is reflected in the fact that none of the resolutions adopted by the Commission was about rural women. Nor did the Commission adopt any agreed conclusions on the priority theme of the 56th Session.

In contrast to CSW’s somewhat anemic approach to the priority theme, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addresses the rights of rural women as a group. Indeed, CEDAW is the first human rights treaty to recognize rural difference, to acknowledge rural populations. While Article 14 guarantees to rural women all the rights enumerated elsewhere in CEDAW, the article also addresses rights specific to rural women. These include the right:

  • to be involved in “development planning at all levels”;
  • to benefit from “all community and extension services” among other types of education;
  • to “organize self-help groups and cooperatives in order to obtain equal access to economic opportunities”;
  • “to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, as well as in land resettlement schemes”; and
  • “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”

Read more about Article 14, its history, and its implementation herehere, and here. Given the particular attention paid to rural women in this germinal women’s rights treaty, one might have anticipated considerable attention to the provision and its potential at CSW 56. Not so at the sessions I attended. I heard Article 14 mentioned only a couple of times.

It is a common bias among lawyers to presume law can solve problems and should be used to do so. Lawyers may be more skeptical about whether international law is effective at solving problems, attributing failures to the lack of enforceability of international law and the lack of respect for the rule of law, particularly in the developing world. As a ruralist, I have asserted that law is less effective at addressing problems in rural locales for some similar reasons. That is, when legal institutions and legal actors (including lawyers) are literally less present, laws on the books are less potent and the rule of law withers. All of these issues related to the relevance, authority, and efficacy of law were in play—sometimes explicitly, more often implicitly—in the attention CSW 56 gave to rural women.

Many of the participants in CSW 56 were not lawyers—nor were they UN or national officials. Rather, the vast majority of participants were associated with NGOs that have consultative status with the UN Economic and Social Council. Indeed, on each morning of CSW 56, officials with UN Women held a briefing for NGO representatives (also referred to as “civil society”). By the middle of the first week, UN Women announced that 1,598 NGO representatives from 358 NGOs were engaged in the annual gathering.

At these daily briefings, UN Women officials offered affirmations to NGO representatives, assuring them of the importance of their efforts. The UN officials also offered updates on what was happening at the “high-level meetings” that few NGO representatives had permission to attend. In spite of their exclusion from many of the events where member states were in direct talks, NGOs presented a robust and varied array of panel discussions. A tiny sampling of the topics and their sponsors follows:

  • Women and Corruption: Grassroots Experiences and Strategies, Huairou Commission, UN Development Program
  • Empowering Caregivers to Build Healthy Sustainable Communities, Huairou Commission, GROOTS International, International Council of Women
  • Rural Women's Groups and Key Stakeholders Frame Joint Actions, Government of Norway, Huairou Commission, GROOTS International, UN Women, UN-Non Governmental Liaison Service, Baha'i International Community, Food and Agriculture Organization, International Fund for Agricultural Development, World Food Program, Landesa
  • Rural Women Speak: Land, Health and Rights in Africa, FEMNET
  • Rural Girls and Urban Migration: The Role of Communications for Development in Bridging the Divide, UN-HABITAT, Plan International, UNESCO, Women in Cities International
  • Measuring Change for Rural Women in Sub-Saharan Africa, Global Fund for Women

Here is a link to the official programming, and a full listing of the NGO programming is here.

While most commentators in these parallel and side events presumed developing world contexts, a few offered reminders that biases against women persist in the developed world, too, including in relation to agriculture. In other words, Australia, Canada, the United States (just to name a few) all have work to do to empower women, including those in rural areas. (To be clear, unlike these other nations, the U.S. has never ratified CEDAW and is not bound by it).

This sampling of events demonstrates my earlier points about both the relative absence of attention to law’s role in solving the problems of rural women (and perhaps, by implication, all women), and also the shortage of programming regarding issues unique to rural women. To the extent that the particular concerns and circumstances of rural women were center stage, the focus typically related to agriculture. Among these were issues such as access to credit and means of marketing their products, the relative merits of “sustainable” agriculture versus intensive production agriculture, and an issue that more squarely implicates law: women’s right to own land. Officials from UN Women reported that diplomats participating in CSW 56 were sharing examples of legislation that would achieve land reform and improve land distribution schemes, but in the next breath they acknowledged the challenge of getting these laws implemented and enforced.

The need for legal reform arose in other contexts, too, but so did law’s limitations. For every comment I heard about the utility of Article 14 of CEDAW (or some other progressive national or international law) and the importance of legal and policy environments that were conducive to women’s empowerment, I also heard words of caution about the limits of law. Government and UN officials were more likely to tout the power of law, while NGOs were more likely to focus on village realities that often undermine the rule of law. Among those offering caveats regarding the potency of law were those who noted that many will be reluctant to invoke it—including criminal laws—in relation, for example, to forced child marriage. One African NGO representative stated,

Face reality ... be honest. Even in America, who tells the law? Maybe [the victims and their families] are illiterate ... [child marriage] is their custom. Who goes to tell the law except the child? And how can the child go tell the law?

This is where all of us come in ... if your NGO is interested in solving these problems. You go [to the village], watch the ways things are done and then talk to the educated locals [so that they begin to see the social and economic costs of the practice, e.g., child marriage]. And they will know they must do something.

This woman, like many others I heard over three days, extolled the importance of grassroots efforts to achieve the empowerment of women.

Wherever one might strike the balance between formal law on the one hand and local, grassroots efforts to educate and achieve cultural change on the other, few coming out of CSW 56 would dispute that both have significant roles in empowering not only rural women, but indeed all women.

Originally posted to Jurist.org; cross-posted to Legal RuralismIntLawGrrls and Agricultural Law.

 

 

March 8, 2012

Presumed Incompetent: The Intersections of Race and Class for Women in Academia

Professor Angela Harris has a new book out, titled Presumed Incompetent: The Intersections of Race and Class for Women in Academia.

From the publisher: "Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. The narratives are filled with wit, wisdom, and concrete recommendations, and provide a window into the struggles of professional women in a racially stratified but increasingly multicultural America."

To learn more, visit http://www.usu.edu/usupress/books/index.cfm?isbn=8695.

 

 

 

May 23, 2011

False Dichotomies of Class (Part II): Material versus Cultural

I responded last month to Martha McCluskey’s ClassCrits post, “Class as a Category of Vulnerability and Inequality.” In that initial response, I asserted that progressives need not choose between advocating mobility (the upward variety!) and advocating mobilization (collective action, labor rights) when it comes to class. I called the tension between mobilization and advocating class mobility a false dichotomy. This post takes up another issue that arose from the initial conversation: is class material or is it cultural? More precisely, will attending too much to the cultural aspects of class cause us to lose sight of its material aspects and consequences?

Of course, class has both material and cultural components—no doubt one of the reasons we increasingly refer to it as “socioeconomic status” or “SES.” I believe we must take both seriously in our efforts to empower the working class and poor. As with my prior post, I take the white working class as my starting point for several reasons. One is that I don’t hear socially conscious progressives pushing for a bifurcation that separates the material from the cultural with respect to minority groups. The other is that focusing on working class and poor whites permits us to see class more clearly. If we are looking at the group which enjoys the greatest racial privilege, we will not be tempted to collapse the class problem into the racism problem. We thus have a distinct opportunity to see just how powerful class disadvantage is. This tack it is not intended to discount the ways in which racial disadvantage exacerbates class disadvantage.

Thinking about class as culture implicates identity, and some have challenged class as a basis for identity, especially among “lower classes.” John Guillory wrote in 1993:

Acknowledging the existence of admirable and even heroic elements of working-class culture, the affirmation of lower-class identity is hardly compatible with a program for the abolition of want.

First, note that even Guillory implicitly links culture (“lower-class identity”) to the material (“abolition of want”). Second, while Guillory’s assertion may be somewhat true regarding those most materially deprived—the poorest among us—it overlooks the fact that many working-class whites are proud of that status. Jim Webb has observed, for example, that rednecks “don’t particularly care what others think of them. To them, the joke has always been on those who utter the insult.” If they suddenly got rich, they would not necessarily shed their cultural trappings. Nor would they shrug off all of the socialization and habits of their childhood and youth. Consider the “Beverly Hillbillies” as a vivid (if imperfect) illustration of the point. As many scholars have observed, class is inextricably linked to consumption, and consumption implicates not only money, but also spending priorities and taste.

Significantly, scholars have observed that culture varies more along racial and ethnic lines among the “lower” classes, while culture becomes more homogeneous as you work your way up the class hierarchy. In other words, the upper classes—regardless of race or ethnicity—tend to be more culturally like each other than they are like those of their same race or ethnicity who fall below them in the class hierarchy. This, too, is evidence of the symbiotic relationship between the cultural and the material. Given the link between being lower class on the one hand and manifesting cultural differences attributable to race/ethnicity on the other, denying cultural aspects of class for working class and poor whites seems tantamount to denying their personhood. It also overlooks a whole lot of sociological literature that sees cultural and material aspects of class as entangled.

In fact, a feedback loop exists between the material and the cultural in a range of contexts. June Carbone illustrates this in relation to family types in a forthcoming article.  Education is another context in which the two are intertwined: the working class are less likely to seek higher education and may scoff at its value in part because they know (or believe) they cannot afford it; they see it as beyond their reach.  Young people from working class families are thus far less likely than the children of professionals/the managerial class to get college degrees, which contributes to the financial insecurity of the former and keeps them in the working class.

Martha McCluskey’s post about cultural and material aspects of class arose from my discussion of Joan Williams’s new book, Reshaping the Work-Family Debate: Why Men and Class Matter.  The book is the subject of a colloquy in the Seattle University Law Review, in which Laura Kessler suggests that Williams pays too little attention to the material aspects and consequences of class by virtue of attending too much to its cultural aspects. To this, Williams responded as part of the colloquy:

Does a focus on how class is manifested as cultural difference entail overlooking the structuralist-materialist dimensions of class? Not at all: I am a material girl. But here’s the fascinating thing. Since 1970, Republicans have adopted policies that have radically increased inequality of incomes and eviscerated the economic stability of Americans who are neither rich nor poor with those very Americans’ political support.

* * *

All this is to say that, although I am a material girl, I recognize that we do not live by bread alone. Dignity and meaning-creation are equally important. So it is possible to connect with people whose economic interests do not in sync with yours if you connect with the symbols and the values that give dignity and meaning to their lives. That’s what the Republicans have done, and I propose that Democrats follow the same path.

To be clear, acknowledging culture does not let the state off the hook. In my earlier post, I discussed the role of the state regarding the increasing immobility of the working class. The state also plays roles in relation to a conception of class that attends to culture. One such role should be to prevent discrimination. Mitu Gulati and Devon Carbado have argued that anti-discrimination law should protect the "fifth black woman," the one with dreadlocks and African garb. They have asserted that whites are not faced with her dilemma—to pass or not—but they are wrong. Whites, too, must behave and dress in certain ways in order to "pass" successfully in settings where power (and wealth!) resides, e.g., elite universities, graduate and professional schools, large law firms, corporate America, middle and upper echelons of government.

Williams’s survey of ethnographic studies of the white working class suggests that turning away from working class habits, manners, and attitudes is necessary for class migrants to, well, migrate—to ascend the class ladder. They must do this in order to succeed and thereby to enhance their material well-being. Williams reports some comments made by class migrants during her book tour, noting that “they expressed anxiety that their migration in to the elite would leave them alienated from the values they grew up with and still hold dear.” At the same time, they worried that the working-class values engrained in them would inhibit “their ability to move up” and “attain professional success.” Williams was reporting there about class migrants of color, but it is high time we acknowledge that white class migrants are similarly hamstrung.

All of this points to the wrongheadedness of trying to bifurcate the cultural and material when we think about class. Clearly, each has a significant influence on the other, and we should reject a dichotomy between the two as false.

Cross posted to SALTLaw Blog and ClassCrits.

April 17, 2011

Elitism and Education (Part III): Working Class Whites and Elite College Admissions

(Parts I and II of this series appeared in August, 2010 here and here.)

Ever since Ross Douthat discussed No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life in a July 2010 column, I’ve been fretting about some of the book’s findings.  This 2009 book discusses the authors' exhaustive study of college admissions, with particular attention to elite colleges.  Among the conclusions of Princeton sociologists Thomas Espenshade and Alexandria Walton Radford is that whites and Asians needed higher grades and SAT scores to gain admission, while blacks and Hispanics were favored in the admissions process.  Stated thusly, I am not troubled by the finding.  But then Douthat makes a related point, about the consequences of this fact on “lower-class” whites:

For minority applicants, the lower a family’s socioeconomic position, the more likely the student was to be admitted. For whites, though, it was the reverse. An upper-middle-class white applicant was three times more likely to be admitted than a lower-class white with similar qualifications.

Douthat goes on to explain that this failure to admit more working- and other “lower-class” whites may be “a money-saving tactic.”  Specifically, “Espenshade and Radford suggest that these institutions, conscious of their mandate to be multiethnic, may reserve their financial aid dollars ‘for students who will help them look good on their numbers of minority students,’ leaving little room to admit financially strapped whites.”

Douthat characterized this as “unsurprising,” noting also that the “downscale, the rural and the working-class” whites were most disadvantaged in the admissions process.  I will discuss the “rural” part of his assertion in a future post, but for now I want to focus on the working-class white part, geography aside.

I initially blogged last summer about Douthat’s column on my Legal Ruralism Blog here, but I was a bit skeptical of his summary so I ordered the Espenshade and Radford book.  By the time it got to me, the NYT had published Espenshade’s response to the Douthat column.  An excerpt follows:

We find that applicants who demonstrate a strong commitment to career-oriented extracurricular activities while in high school have a slightly lower chance of being admitted to a top school.  This outcome affects only students who have won awards or assumed leadership positions in these activities, not those known for their extensive involvement.

I do not understand the distinction Espenshade is making between leadership and awards on the one hand and extensive involvement on the other.  I would expect the two to go together, and I am unclear as to why winning awards and being a leader would be looked on less favorably than extensive involvement. In any event, Espenshade continues:

These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors.

Espenshade thus challenges Douthat’s association of these activities with rurality.  Espenshade asserts instead that such activities “could just as well suggest that these students are somewhat ambivalent about their academic futures.”

This is consistent with what Espenshade and Radford say in their book, presenting the “bias,” if you will, as one against students whose interests run to what they characterize as “career-oriented.”  In a somewhat similar vein, they find that holding a part-time job during high school also hurts one’s admissions prospects.

In response to Espenshade’s clarification, Douthat points out the difference between admissions and acceptances, stating:

It’s a question of admissions offices looking at students who went to the effort of applying to elite schools (an act that already suggests a strong interest in an academic future of some sort) and downgrading their chances, for whatever reason, because they excelled in ROTC or the 4-H club or a co-op work program.

While I found Espenshade’s clarification helpful and agree that Douthat initially failed to provide adequate context, I tend to agree with Douthat’s point that the current system is not achieving optimal diversity.  If we really want diversity, shouldn’t we admit proven high school leaders with good grades and such, regardless of the nature of the extra-curricular activities in which they demonstrated their leadership?  I also must admit that I’m not really sure what sort of high school activities do not look “career-oriented.”  (But maybe that comment reflects both my age and my place of origin …)  It is, after all, high school.  Perhaps involvement in the arts or some such seems more impressive and more academic?  But opportunities to participate in the “right” enrichment activities may not be available in all schools or all communities.  Further, working class families may not be able to afford the costs associated with participation of some enrichment activities, just as educational travel may be beyond their reach.

In addition, it seems just plain wrong to me to hold against an applicant the fact s/he held a part-time job.  Where I come from, a part-time job is a reflection of industry, not lack of ambition.  (It is also often a reflection of need.)  I suppose, however, that more affluent parents discourage their children from working for pay because it diminishes the time they would have to invest in their studies and in the “right” extra-curricular and enrichment activities.  (For a fascinating discussion of the different child rearing priorities and practices of the white working class compared to the professional/managerial class, read the “Learning Class at Your Mother’s Knee” section of Joan Williams’ 2010 book, Reshaping the Work-Family Debate: Why Men and Class Matter.)

Some aspects of the Espenshade and Radford study fly in the face of the pervasive notion that we are a nation in which social mobility is attainable for everyone, including working-class whites--indeed, maybe especially for them because they enjoy white privilege.  Maybe the lesson is that lower/working class folks are only supposed to ascend the socioeconomic ladder one rung at a time.  It’s OK if working-class whites get to college—maybe we even want them to—but perhaps we think they do not belong at elite colleges.  Maybe an elite education is actually a rung or two farther up the ladder, rungs reserved for a future generation, for the kids or grandkids of the generation that first makes it to college.

It nevertheless saddens me that this thwarting of class mobility for working-class whites is partly a consequence of the absence of admissions officers who actually know something about working-class families, not only their fiscal limitations but also the ethic of industry associated with them.   Otherwise, why would career-oriented activities be held against these students who—by engaging in such activities—may be hedging their bets in the event they don’t “make it” in higher education or, as the case may be, even get admitted to elite colleges.

Must everyone who gets into an elite college be either pre-ordained by (1) circumstances of birth into relative affluence or (2) the all-too-rare and lucky racial or ethnic minority who gets an affirmative action slot?   To my mind, the tunnel vision of elite college admissions officers is one more reason to be concerned about the relative absence of class migrants—including white class migrants (read more here)—from influential positions, including the ranks of college admissions officers.

Cross-Posted to ClassCrits Blog and SALTLAW Blog.

April 12, 2011

False Dichotomies of Class (Part I): Mobility versus Mobilization

Martha McCluskey wrote a couple of weeks ago on the ClassCrits Blog about some questions regarding class that arose at Martha Fineman’s recent workshop, Masking and Manipulating Vulnerabilities, at Emory Law School.  To summarize, McCluskey asked whether it is “problematic to analyze class as a category of inequality without directly engaging questions of labor rights?”

The genesis of that conversation at Emory was my speculation regarding the reasons for resistance to class analysis regarding whites and, by extension, resistance to the vulnerability paradigm.  Like my other recent work on class, my comments at Emory  focused on class mobility and did not engage issues of collective mobilization.  I thus believe the clear answer to McCluskey’s question is “no.”  Class mobility (think class ascension, although the sad trend these days is downward mobility) and class mobilization (as through unionizing and labor rights) seem to me different paths to empowerment of the working class and poor.  I see these as able to reside comfortably, side-by-side, on parallel tracks.  Indeed, now that McCluskey (echoing others at the Emory workshop) has voiced this issue, I find myself surprised that we do not see more law professors writing about class (im)mobility in a way that separates the issue from racism. That is, I am concerned that socially conscious progressives see challenges to upward mobility as stemming primarily, even solely, from bias against minorities.  If this is the case, we are failing to see that whites, too, are increasingly victims of the inequality gap and its attendant barriers to upward class migration.

We socially conscious progressives are attuned to the need to achieve higher educational attainment for racial and ethnic minorities.  We understand the need to facilitate their class ascension, to integrate more of them into the professional/managerial class, to bring them to the big table of law- and policy-making, in part so that we can benefit from what they know from personal experience.  Affirmative action programs have long been aimed at this outcome—and rightfully so.  We don’t just talk about unionizing minority populations, which presumes that they will stay working class, albeit in a materially more comfortable way.  We talk about diversifying the pipeline into the upper middle class, a/k/a the professional/managerial class.  We grieve the fate of minority children who could have become our political and business leaders—if only they had enjoyed something approaching equal opportunity.

Why, then, do we pay so little attention to class mobility among poor and working class whites?  Why would we limit ourselves to working for their mobilization—as in unions—rather than their upward mobility? Perhaps we have taken for granted white folks’ ability to transcend class boundaries because whites are not the victims of racism.  To quote Joe Bageant’s Deer Hunting with Jesus:  Dispatches from America’s Class War, we’ve been snookered by the “myth of the power of white skin.”  That is, we may buy into the “unspoken belief that if a white person does not succeed, his or her lack of success can be due only to laziness.”  We recognize racism as among the many factors that impede class mobility for racial minorities, but we don’t credit the structural barriers—or cultural bias against poor whites (see here and here)—when assessing the prospects of working class whites.  Yet many poor and working class whites face the same sorts of structural and cultural obstacles that burden minorities:  crummy schools, inadequate health care, a dearth of educated role models in their communities, and low expectations.

Yes, tragically, racism is alive and well in this country.  But minority status is not the only force that holds back working class young people who have the sheer native ability and ambition to get a college degree—or even go well beyond it.  Socially conscious progressives are smart enough to know this, but I see very few acknowledging it.  Which brings us to the State, hardly an innocent bystander of the “class war” to which so many insist on turning a blind eye.  To pick up Martha McCluskey’s metaphor, of course the different classes are not just layers in a cake with as much do with one another as with the cake pan (a/k/a the State).  No, the inferior education, health care and other dwindling supports to which the working class have access directly implicate the State and its grossly uneven distribution of resources.  Relying on local funding (as opposed to state and federal funding) of myriad services is just one component of this.  As President Obama recognized in his 2010 State of the Union address, “the success of our children cannot depend more on where they live than on their potential.”  Yet sadly it often does.  Read more here and here.    

I admit that I’m interested in class (im)mobility in part because I’m a “class migrant,” one “born and raised working class, who join the upper-middle class through access to ... education” (quoting the definition from Joan Williams’ recent book).  But the struggle for class ascension isn’t only supported by anecdote.  Data indicate that upward mobility for the working class is declining—at least as measured by higher education attainment.  In 1970, 61% of college students were the children of parents whose highest education level was a high school diploma or less—that is, they were “first-generation college.”  By 1990, that figure had fallen to 41%, and in 2000, only 22% of those who attended college were the first generation in their family to do so.  Even taking into account the role played by the rising percentage of people (parents) with college degrees over those three decades (though it remains less than 30%), the data suggest that the working class kid who gets to (let alone through!) college is increasingly rare.  Structural impediments bear a significant part of the blame.  Most obviously and recently, these include dramatically higher tuition for tertiary education, even at state colleges and universities.

In any event, I don’t see how this focus on class (im)mobility—which has both material and cultural aspects (as I shall discuss further in a future post)—precludes attention to organized labor.  I’m all for unionizing those who will remain in the working class, and I would hope that nothing I say be used to naturalize constraints on workers’ power to act collectively.  However much we increase mobility for some, we will always have workers with us, but they need not be poor.  Clearly, collective action is necessary to improve their material circumstances.

But focusing only on organizing the working class is arguably an insult to the extent that it objectifies and distances “them” from “us,” compartmentalizing them below us in the class hierarchy.  To focus exclusively on unionizing the working class overlooks the potential and desire of some to transcend class boundaries (as through higher education) and join the upper middle class.

Surely we want white class migrants among our ranks—just as we want class migrants from minority groups—sitting at the “big table” at which social progressive brainstorm problems, set priorities, and formulate solutions. I am convinced that they (we) could teach us (you) a few things.  Class migrants can remind those in power what generations of them have known:  like the racial privilege enjoyed by those of us who are white, our class privilege causes us to take too much for granted—and it tempts us to take too much individual credit for our own professional and material success.

Cross-posted to ClassCrits, SALTLaw Blog, and Legal Ruralism