Shows the way in which people are actually equally qualified can be put in an environment in which the context will do something within them that actually makes them perform less well than they would in another context and this been replicated in scores of studies. It applies not just to members of traditionally disadvantaged groups like women on difficult math test, for example. If you tell them nothing they will do as well as the men. If you remove that stereotype threat by saying, host of the time women dont do as well as men on difficult tasks but thats not true at this particular test the scores will be less. The same with white men playing basketball against the black man or white men doing against asians et cetera. So what would it mean to try to disrupt these processes of different creation . Well again, here i would have to refer to a lot of the social Science Literature but let me give you a few quick examples. First of all the rationale for affirmative action changes. Its now no longer a racial preference is given to somebody either too great a racial spoils system, or to compensate for past discrimination, nor is it a way of broadening the institution so that everybodys unique viewpoint is represented. Now, the purpose of affirmative action is to allow enough people in to challenge and sensor and break down the stereotypes about their group. That is a very different understanding of what the enterprise is about. Okay, so i could say much more about other cases that would support this but i wont right now. How would this make a difference . Let me give you a couple quick examples. Critical mass really amorphous concept especially in the higher into context. Nobody really knows what it means. The research that would support what i call a destruction understanding of affirmative action would give us an answer to that. The answer to how many people have to be admitted would be enough people to break down the stereotypes, right . Dividing people up into groups that occurs within an institution. For some groups there will never be enough and thats a big problem not at least we would start from the Vantage Point of social science that would give us a definite answer to the question. Second of all we can refrain cases that are really problematic like, for example the Public Employment cases where a Police Department hires a certain number of minority officers, and there are really problematic rationales that are out there to support that. And hear the rationale would change the way from the notion that somehow just having officers of a certain race will provide a role model and promote more respect right between the osha and the larger to me to be. Instead it would mean if you have enough officers of a particular race, they will change the white officers and they will begin to see the minorities officers differently and as a result they may relate to members of the community of the same race differently. The focus isnt on the Community Versus the minority officers. It on changing the minds of the whites. A lot more to say, one thing i will not have a chance to talk about my beloved saga in the q a is the research on social categorization which is about the processes which we place people into groups to begin with. If you look at a case like and hopkins was told to walk more than a late et cetera before any of that can occur, that normative stuff we first have to look at hopkins and safe email right . Versus new. Thats the process of sorting people into categories. There is Research Suggesting that this basic process of dividing people into groups in a particular context underlay stereotyping, stereotype threat and all that. There are some institutions, god knows i hate to hold the marines up as a model, but there are institutions that do a very good job of creating a large sense of we. So the people may retain a sense that they are black or latino or female but it is subordinate and, therefore,and, therefore, the whites and the males see them differently because they are all in it together as marines. Theres a lot that can be do i think in the name of raceneutral alternatives. Sorry to go over. [applause] so id like to just add a couple of comments. My comments well i think take us back to the beginning. Take us back to 1964. I actually helped linda by serving on the Planning Committee for this conference and it feels like ages ago that we started planning the conference. Initially was asked to be on the committee i actually didnt think i was a good fit for the committee. So its true that am a scholar of race and racism and the Civil Rights Act are concerned with race and race and among other things the frisson operate in a moment, i never conceptualized the Civil Rights Act is something to celebrate. So when i volunteered to speak on this panel, again titled the limits and future of antidiscrimination law, i imagine i would focus my comments on the limits of the law specifically the Civil Rights Act as a limited and limiting people legislation. Why have i been such a negative nelly about the Civil Rights Act . They were passed in response to the revolutionary advance of revolutionary people in the 1950s, 1960s. These revolutionaries demanded Racial Justice. The Civil Rights Act were passed in response to those demands. It is reasonable to conclude that the Civil Rights Act which is supposed to bring about, to produce Racial Justice that they were demanding. If thats what theyre supposed to do then they have failed. While the legislature was designed to address the subordination that black folks were forced to endure in this country, black folks remained at the bottom of every measure of well being in this country. Im about to cite some statistic and i thought at this point the statistics wouldve been charted out already but interest when they havent so allow me to remind you just how poorly black folks are doing a. Black women are four times more likely to die during childbirth than white women. Infant mortality rate for black babies is twice that of white babies. Black folks have high rates of hypertension, diabetes and Heart Disease than any other racial group in this country. So in general black people are sicker and they die earlier than their counterparts. And this is true even when one controls for class. Im going to say that again. This is true. We had a talk yesterday about the move from racebased to classbased interventions. This is true even when we control for class. This is not a problem of class not a problem of black people being more for the way people. This is a problem of black people being black people. Those are measures of health. The poverty rate for white people was 12 between 2007 20072011. The poverty rate for black people during a century the timeless 26 more than double the rate for whites. Approximately 1. 5 Million People are incarcerated in this country today. 350,000 of those people are latinos, african thousand of those are white and 550000 of those people are black. These figures are more disturbing would you conceptualize them in terms of the composition of the u. S. As atopic latinos make up 16 of the population 23 of those who are incarcerated. White people make up 63 of our country now. And make up only 33 of those who are presently incarcerated. While black people make up only 13 of the u. S. , they constitute 37th in of the people who are presently incarcerated. And then to our Racial Disparities in hiring. Just as an example is look at the faculty webpages for any law school in this country was a a striking absence of black and brown faces. Just as an example to look at the highest court in the nation, the Supreme Court specialty take a longitudinal view youll see an absence of black and brown faces. Out of 112 justices who have ever served on the court 109 have been white. If you like numbers that means 2. 6 of justices have been nonwhite. 2. 6 is a small number. So consider i can make reference to unarmed black man who have been killed by the police in the last six months. Michael brown, eric garner your on the negative nelly when it comes to the Civil Rights Act to if theyre supposed to bring the Racial Justice for black people, they didnt do it. But they did do something. It is undeniable that country looks quite different than it did 50 years ago. Unlike homer plessy i didnt have to ride in the colored section. There are going to white and colored water fountains in the lobby. The truth is explicit demonstrations of racism just not as, as they were 50 years ago. We have the Civil Rights Act as well as a better interpretation of the equal protection clause of. Okay. Employers to refuse to hire me just because im black. They can decide to hire me because i believe these earrings earrings. The policies may say no cornrows allowed. Thats unprofessional but they cant decide did not me because im black. They can decide in the hire me because i speak spanish and i want to speak spanish with some coworkers and they might have an english only policy. They can decide to not hire me or for me because of that. So black people are not subject to the same indignities they were subject to 50 years ago and that matters and that might be cause for celebration. But the truth is that while black people and other racial minorities are not subject to the same indignities as 50 years ago, they are nevertheless subject to indignities. Indignities have changed. But that may be the ultimate point. The ultimate point maybe this. I believe at least some of the architects of the Civil Rights Act that the law was going to bring about Racial Justice by attacking the most explicit demonstration of racial exclusion. So now in the face of the fact that attacking the most explicit demonstrations of racial exclusion does not destined bring about Racial Justice, if we are still interest in Racial Justice so we have to get what needs to be attacked. As it turns out the things that need to be attacked are not so obvious. Another way of saying the social practices that make in racial inequality are not as plain and unambiguous as they were in 1964. Indeed the practices that maintain racial inequality are frequently raceneutral. Im not sure that a statute that prohibits discrimination on the basis of race can get out of the. Maybe we need something that prohibits inequality on the basis of race. So what are these raceneutral practices that maintain inequality . Our refusal to recognize it as a economic problem. Its how we distribute educational and Employment Opportunities. And it is how we define marriage. Consider hiring legal academia. Law professors tend to come from the same can schools. And these can schools have historically, and currently, have been racially exclusionary. In order to get to these cozy up to take a standardized test. These tests have always been racially exclusionary. But jobs and the fellowships and the clerkships that of the stepping stones for this jobs in legal academia have always been racially exclusionary. We have to ask ourselves, how do we fix that. Then we have to ask why our schools and standardized testing and these jobs and the clerkships and fellowships, why is that the stuff of merit anyway . Why not Life Experience . Why not perspective, why not a Village Committee with a particular community . Won a peabody to bring your history and your path to these legal doctrines and perhaps to produce a creative argument that may actually get somebody here on the court. We should also keep in mind that race is a slippery, shifting thing the critical studies 101 teaches its not biological. Its social. As social its pragmatic. Its our purposes. When purposes shift race shifts. Something that might never been a characteristic of race in 1964 may be a character is to embrace in 2014. And may not be when they get in 2064. So, for example, in a resident of harlem i put on a resume i live in harlem. That is a characteristic of race. In 2064, living in august not good to be a characteristic of race not the same race. Speaking spanish prevent think is a characteristic of race. Latinas speak spanish nonlatinos dont speak spanish. In 2064 that may not be true. More latinos are not speaking spanish and more nonlatinas are speaking spanish. Winning his cornrows and these door knockers is currently a marker of race in 2014. May not be a marker of race in 2064 if we let bo derek have it. So i could go on and on. And so any at the discretion law that is not fluid, dynamic and responsive to the fact that race and the technique of racial exclusion are fluent and dynamic will necessarily be limited. Finally, as a cherry on top of my negative nelly kate im not exactly sure how fluid and dynamic in response to change the law can be. Perhaps the tendency of the law is to be static, and perhaps it will take herculean efforts to make the law not static and to make it respond to changes in society that regulates their perhaps those efforts to make law not static are not going to bear fruit we have a segment of society with power that is satisfied with social. Efforts to make blow response to change that will not there for when you this segment of society, that doesnt want the law to change a thing or to two make many laws on the books quite limited, given change social context. So i believe that the Civil Rights Act are quite limited given change to social context but im happy that i was able to celebrate its limited successes this weekend. [laughter] and so with that i will open up for q a. If you have a question, please come down to the microphone. [applause] im kathy, georgetown law khiara, that was amazing. Very right on point. I think one thing we can take from your is that maybe were at a point where we should be really hammering on extralegal ways to deal with this huge problem. I questions and comments are for sonu. Thank you for your presentation. I really like compared to four. Its interesting to look a what Different Countries are doing and the impact on those. I think you presented your work in a very descriptive way. There wasnt much normative but im guessing that normatively that you would come you like the South African system better than u. S. I think what you have is a really interesting that the materials to do a really balanced analysis. So some things you might want to think about the values of federalism, not putting so much power at the federal level, having states have a lot of power. Also predictability. When you privilege one value over another, people are on notice about what they can do and what they cant do. When you place these really important values equally, its not commute not certain about how its going to come down and thats an important thing to think about. But my question is really about the courts analysis that the South African courts analysis on this ordinance case. Certainly there are think we can see the harm done on both sides and if we truly believe that these values are equal then we might think about the harms and sql. When you presented the courts rationale, every argument was discrimination is bad discrimination is bad discrimination is bad. I always tell my students when you do value comparison, its not persuasive to argue that one value is important, one value is important. Its not persuasive we think about these important values as equally important. Im just wondering about how the court compared these equally valuable things that we want to forward, and why they come to the conclusion that tamping down on discrimination is better in this scenario that allowing religious freedom . Great, thank you. Yeah so do you think its a limit of the United States constitution and doughnuts for the Constitutional Values nondiscrimination employment. I was only suggesting that in that one particular South African case youre right in that case they came down on the side of the employed. Isolated that me to suggest that is that they should always come down on the side of employ. Thank you suggested they would be circumstances would come down on the side of the religious employer. So for instance, the class example for the ministerial exception would be if the catholiccatholic church decides that the record instrument on the basis of sex or sexuality entire increase. Theyre only going to hire straight guys, right . In that case ended and commentary on the South African case, in that case we should, on the side of the religious employer. Whats interesting in the house on the case the person was not solsona in the position of the minister and the employed was caught in a catch22. What im suggesting if there are to go important values, what it means is that sometimes one woman, sometimes the other. I didnt mean to suggest that only nondiscrimination but in the United States context its easy to see why often religious autonomy is going to win out and that is what i think is problematic. Theres a microphone behind you. Thank you, everyone for a very engaging presentation. My question is for ruth. To kind of questions, thoughts. First, i was was surprised, i assume utah but the success are you talking that due process and i was very surprised by the low, you said 18 or Something Like that. I was surprised because thats not normally the way i think about those cases where someone has the resources to show up and fight about the standard pretty good chance. So i was curious as to your views as to why that is so low apart from the issue of the discrimination against mom she talked about her identity thought about your project in this way but could be useful peace of the larger silicate investment in education. Youve alluded to that so i think your project could be helpful i