Faculty Bibliography

In the United States, employers, schools, and governments can face two competing legal requirements regarding racial classifications: on the one hand, there are legal restrictions against conscious uses of racial classifications, and on the other hand, there are rules forbidding racially disparate impacts. Growing use of machine learning and other predictive algorithmic tools heightens this tension as employers and other actors use tools that make choices about contrasting definitions of equality and anti-discrimination; design algorithmic practices against explicit or implicit uses of certain personal characteristics associated with historic discrimination; and address inaccuracies and biases in the data and algorithmic practices. Justice Rosalie Abella’s approach to equality issues, highly influential in Canadian law, offers guidance by directing decision makers to (a) acknowledge and accommodate differences in people’s circumstances and identities; (b) resist attributing to personal choice the patterns and practices of society, including different starting points and opportunities; and (c) resist consideration of race or other group identities as justification when used to harm historically disadvantaged groups, but permit such consideration when intended to remedy historic exclusions or economic disadvantages.

In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.

What is the legacy of Brown vs. Board of Education? While it is well known for establishing racial equality as a central commitment of American schools, the case also inspired social movements for equality in education across all lines of difference, including language, gender, disability, immigration status, socio-economic status, religion, and sexual orientation. Yet more than a half century after Brown, American schools are more racially separated than before, and educators, parents and policy makers still debate whether the ruling requires all-inclusive classrooms in terms of race, gender, disability, and other differences. In Brown's Wake examines the reverberations of Brown in American schools, including efforts to promote equal opportunities for all kinds of students. School choice, once a strategy for avoiding Brown, has emerged as a tool to promote integration and opportunities, even as charter schools and private school voucher programs enable new forms of self-separation by language, gender, disability, and ethnicity. Martha Minow, Dean of Harvard Law School, argues that the criteria placed on such initiatives carry serious consequences for both the character of American education and civil society itself. Although the original promise of Brown remains more symbolic than effective, Minow demonstrates the power of its vision in the struggles for equal education regardless of students' social identity, not only in the United States but also in many countries around the world. Further, she urges renewed commitment to the project of social integration even while acknowledging the complex obstacles that must be overcome. An elegant and concise overview of Brown and its aftermath, In Brown's Wake explores the broad-ranging and often surprising impact of one of the century's most important Supreme Court decisions. Stephen S. Goldberg Award for Distinguished Scholarship in Education Law 2011, Education Law Association; Scribes Book Award 2011—Honorable Mention; and The Green Bag Almanac & Reader Exemplary Legal Writing Honoree, 2010.