Copyright (c) 2008 All rights reserved. http://works.bepress.com/deborah_brake Recent documents in Deborah L. Brake en-us Wed, 02 Jan 2008 22:28:46 PST 3600 http://works.bepress.com/deborah_brake/5 http://works.bepress.com/deborah_brake/5 Wed, 17 Oct 2007 14:26:50 PDT Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. The Article then elaborates upon and offers a justification for the theory of equality underlying Title IX's three-part test. To support this theory, the Article surveys existing feminist legal scholarship on sport and identifies a need for an analysis of women's position in sport that goes beyond a debate over assimilation versus accommodation, to analyze how educational institutions participate in the construction of sport as a fundamentally masculine domain. To fill this void, the Article explores in detail the processes through which educational institutions construct the different relationships of men and women to sport, through their control over athletic opportunities and the culture of sport. Finally, Professor Brake takes this theory and applies it to other aspects of Title IX law, advocating specific doctrinal reforms that would make Title IX's overall application to athletics more consistent with the theory articulated in this Article. Deborah L. Brake Education Law Employment Practice Sports Women http://works.bepress.com/deborah_brake/4 http://works.bepress.com/deborah_brake/4 Thu, 27 Sep 2007 11:51:33 PDT This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions. Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship. Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here. Deborah L. Brake Education Law Employment Practice Law and Society Civil Rights Public Law and Legal Theory http://works.bepress.com/deborah_brake/3 http://works.bepress.com/deborah_brake/3 Thu, 27 Sep 2007 11:51:33 PDT This essay addresses three issues surrounding Title IX's application to women's sports that have been largely eclipsed by the recent controversy over Title IX's three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men's sports as a remedy to discrimination against women; and the role of revenue and massive spending on men's elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is necessary to fulfill Title IX's promise. Deborah L. Brake Civil Rights Education Law Sports Women http://works.bepress.com/deborah_brake/2 http://works.bepress.com/deborah_brake/2 Thu, 27 Sep 2007 11:51:32 PDT This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII's timely complaint and retaliation doctrines create an untenable framework for employees in need of the law's substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system. Deborah L. Brake Employment Practice Women http://works.bepress.com/deborah_brake/1 http://works.bepress.com/deborah_brake/1 Thu, 27 Sep 2007 11:51:31 PDT Existing case law and legal scholarship assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or lowering the level of treatment for the favored group until their members fare as badly as the persons complaining of inequality. The term "leveling down" refers to the latter response. The 1971 case of Palmer v. Thompson provides the classic example of the typical judicial response to leveling down: the Supreme Court accepted the decision of Jackson, Mississippi, to close its swimming pools, rather than operate them on an integrated basis, as fully compliant with the demands of equal protection. More recent cases from a variety of settings demonstrate that leveling down remains a viable and accepted option for remedying inequality. This Article contends that courts and commentators alike have vastly overstated the flexibility of equality rights in accepting leveling down as a response to inequality. It proposes and applies a new framework that focuses on the expressive meaning of leveling down and its compatibility with the norm of equal concern. Applying this framework to real world cases and examples, it demonstrates that leveling down may function to preserve social hierarchies and exacerbate, not remedy, the injuries from the original discrimination. Once revealed as a strategy for preserving social stratification and the expressive meanings on which it rests, leveling down becomes more problematic under equality law. Finally, the Article demonstrates how the proposed analysis would enrich the debate over the normative appeal of equality rights, and contribute to a construction of equality law that is worth defending. Deborah L. Brake Civil Rights Constitutional Law