Article published in Journal of Social Work Education, Volume 56, 2020 , Sup 1

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Abstract

The Policy Advocacy and Social Change course is a specialized practice course offered in the Master of Social Work Program (MSW) at the University of Southern California Suzanne Dworak-Peck School of Social Work. The course is designed to introduce MSW students to a variety of policy frameworks (i.e., Kingdon’s policy window, political model of reasoning) and analytical approaches (i.e., intersectionality and stakeholder analysis) that focus on developing their policy advocacy practice. Both the instructors and students are challenged to develop new ways to engage, distribute, and share knowledge about improving the lives of homeless individuals. Through the course assignments, which include a social issue report, policy brief, and policy advocacy campaign using social media, social work graduate students gain the skills and competencies needed to activate their agency and build capacity to become effective policy advocates.

The purpose of this article is to offer a pedagogical approach for developing a multifaceted policy advocacy practice addressing the Grand Challenge for Social Work to end homelessness. The article is also intended to add to the emerging dialogue about the ways to develop a policy advocacy practice (Hoefer, 2016; Jansson, 2016; McNutt & Hoefer, 2016) and advance the role social workers can play in preventing and eliminating homelessness (Padgett & Henwood, 2018).

Article published in Washington University Law Review, Volume 97, Issue 4

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Abstract

In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. § 1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, § 1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles.

Although Morales-Santana corrected the gender discrimination inherent in § 1409, it said nothing of the statute’s other constitutionally infirm provisions. Although it has drawn little attention, § 1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, § 1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents’ marriage, they are legally recognized as “legitimate” children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents’ marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing instead on how § 1409 discriminated on the basis of gender and effectively allowing this unconstitutional practice to continue.

This Article calls attention to the prevalence of illegitimacy classifications in immigration law by identifying what we term “illegitimate citizenship rules.” In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. As a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children, which includes the treatment of such children in immigration law. As a doctrinal matter, the Article argues that the Supreme Court’s narrow focus on the sex equality dimension of § 1409 rendered invisible the discrimination against nonmarital children. Finally, as the Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the “traditional” family and thus discriminate against those families that do not comport with the heterosexual marital family model. The Article concludes by recommending that Congress seize the opportunity created by Morales-Santana to address and eventually eradicate the ongoing discrimination against nonmarital children who are born abroad.

This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality has been recognized, but curiously there has been no will generated to address this commercial practice head-on. This Article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion, and potentially misleading speech, the Article demonstrates how gamete banks’ current racial categorization practices could thrust courts back into discredited, antiquated legal arguments about racial purity and racial fraud. Part II probes customer preference claims about race to determine what it is consumers believe they are buying when they purchase race in the ART market. Close examination of customers’ arguments reveals the residual influence of anti-miscegenation norms, regressive femininity and masculinity constructs, and a desire to outsource the challenges associated with achieving racial equality. Part III asks whether our Fourteenth Amendment racial equality guarantees require government to wholly prohibit ART exchanges based on race, and explores the likely resistance regulators will face based on reproductive freedom concerns. Part III concludes by exploring First Amendment considerations, specifically, whether government speech doctrine allows states to combat regressive ART messages based on race, or whether commercial speech limitations could be used to limit ART marketers’ more destructive race-based messages.

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Abstract

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

9780190695620

Published in The Oxford Handbook of Law and Humanities
Edited by Simon Stern, Maksymilian Del Mar, and Bernadette Meyler

This chapter explores contemporary accounts of racialization, arguing that Americans are currently experiencing a period of “racial ambiguity blues.” The chapter explains that contemporary racial politics have been powerfully shaped by the emergence of a group of racially ambiguous characters offering controversial racial claims. The controversies triggered by these stories of racial ambiguity lay bare the fact that there currently are competing rules for determining an individual’s race in American society and no single model or account of racialization controls. The chapter briefly lays out the three contemporary racialization models: “so-called” biological race, physical race, and performative race. It then identifies the material and political implications of each racialization model. After noting the challenges the competing racialization models pose for sociology, the chapter highlights ways aspects of the various racialization models can be integrated, offering as an example the author’s account of “elective race.” Additionally, the chapter points to the ways in which analytic approaches from the humanities can help social science scholars craft new analyses that better account for racial ambiguity and racial fluidity. The chapter closes by identifying four new challenges on the horizon for all scholars of racialization across field.

Essay published in the Stanford Journal of Civil Rights & Civil Liberties XIV:SI57, Special Issue: Countering Hate in America

Synopsis

This forthcoming Essay draws upon the racial conflict spurred by the “Unite the Right” rally in Charlottesville, Virginia, to explore the unspoken relationship between gender, protest, and violence in contemporary American society. It posits that the anemic response from the ACLU and government to the threat posed by the Unite the Right rally in Charlottesville stems from various gendered limitations in traditional First Amendment analysis. Armed with insights from masculinity studies, feminist legal theory, and Critical Race Theory, the Essay highlights some of these limitations. It aims to prompt more searching inquiry into the ways gender constructs inform seemingly genderneutral areas of First Amendment law. The Essay identifies two problems revealed by the responses to the Charlottesville events. First, it posits that our free speech jurisprudence was, as a matter of history, created in a “man’s world” with limited female participation. As a consequence, First Amendment doctrine encodes certain gendered cultural assumptions that assume a close relationship between passionate political protest and violence. This standard appeared to have required Charlottesville officials to protect protestors’ speech up to and until it constituted a call for immediate violence, or amounted to a concrete threat of tangible harm. This approach, in effect, subsidizes the interests of a specific identity construct called “protest masculinity,” which sociologists have recognized as a threat to minority communities and society more generally. The Essay argues that free speech doctrine focused on incitement and “true threats” of violence as the primary threats to democracy fails to adequately credit the harms inflicted by other forms of political intimidation.

Second, the essay shows that our traditional doctrinal focus on individual rights—rather than community concerns—is masculine-gendered, and has tangible consequences for the quality of American political debate. It argues that First Amendment law needs more nuanced constructs that can accommodate the various fiduciary duties government officials have to local residents, stemming from captive audience considerations, including being used as props, foils, or forced witnesses to intentionally demeaning and traumatizing public speech. It emphasizes the need for a doctrine that permits a historically contextualized inquiry into targeted attempts at intimidation, as this approach would far better subsidize the expression of free speech interests that are valuable to democracy. The Essay concludes by examining areas of First Amendment doctrine that could be reimagined with more sensitivity to the risks posed by hidden masculinity norms. It shows that existing underdetermined and underdeveloped First Amendment doctrinal concepts can be interpreted to address fiduciary and communitarian interests. More broadly, the Essay claims that the time has come for First Amendment scholars to face the hidden gender norms in our doctrine, and to raise questions about how these standards compromise political debate. Once these norms are revealed, scholars can have far richer conversations about how First Amendment doctrine can be improved to ensure full participation by a broader range of speakers.

Review published at Jotwell.

Last year, Obergefell v. Hodges seized center stage as many family law scholars began evaluating the implications of the Supreme Court’s decision recognizing gay Americans’ constitutional right to marry. Other scholars, however, remained more interested in exploring the inverse phenomenon: the decreasing relevance of marriage and married life for many Americans. Specifically, research shows that many poor and working class Americans no longer find marriage to be a precondition for romantic relationships or parenthood. This group of Americans has formed what Huntington calls “postmarital families.” In her wonderful article, Postmarital Family Law: A Legal Structure for Nonmarital Families, Huntington explores the legal implications of this dramatic cultural shift.

Huntington begins by rendering visible the bifurcated world we currently inhabit now that marriage is no longer the institution that constitutively defines all families. One group of Americans, a relatively wealthier group, lives in marital families; the other, composed of less financially secure individuals, has formed nonmarital, or “postmarital,” family units. Yet family law, she argues, still treats all families as though they are marital families. As a consequence, “postmarital” families are forced to navigate ossified legal presumptions, ill-fitting rules, and institutional structures designed around marriage. Huntington’s discussion successfully renders visible postmarital families’ specific, unique dynamics and further reveals the way existing family law aggravates these families’ special vulnerabilities. She also shows how family law—its legal norms and institutions—must evolve to address postmarital families’ unique problems.

One of Huntington’s most compelling examples is her discussion of child custody. As she explains, the default presumption in many states is that when parties are unmarried, sole custody of a child is awarded to the mother. (P. 204.)1 By contrast, when couples are married, no determination of custody is made and legal presumptions vest both parents with custodial rights and other parental prerogatives.2 Huntington further shows that laws vesting sole, primary custody with unmarried mothers aggravate existing tensions in postmarital families. Specifically, they facilitate maternal gatekeeping, a dynamic in which mothers control nonresident fathers’ access to their children. (P. 204-05.) To exercise their custody rights, fathers in postmarital families must petition the court for relief, a remedy that is far too complex and expensive for most postmarital fathers. Further aggravating matters, the only default regulations that actually affect postmarital fathers are child support regulations. Child support regimes focus solely on financial contribution, enforcing a de facto (male) breadwinner standard derived from marriage. This breadwinner standard sets up poor unemployed or underemployed fathers for failure. (P. 207-08.)3 Moreover, the law’s emphasis on financial contributions from fathers, rather than ability to provide care, encourages even more resentment from mothers in postmarital families, fueling acrimony between the parties.

After describing how the current legal rules aggravate dynamics specific to postmarital families, Huntington points to research showing that children benefit when both parents are able to maintain engaged and loving relationships with them. (P. 173.) She also points to the growing cultural understanding that children require more than economic contribution from their fathers, and that paternal care has value as well. Huntington then offers a postmarital law solution: at the birth of their child both postmarital parents should be given enforceable legal and physical custody rights to the child. Equally important, they must be provided with a dispute mechanism that requires parties to cooperate and jointly work out custodial arrangements. (P. 209.)

Many of Huntington’s suggested innovations for postmarital family law are bound to trigger pause. These proposals include tying child support regimes to child custody and visitation regimes, and in this way securing postmarital fathers’ consistent access to their children. Also, questions remain about how many of her custody and child support proposals would play out on the ground in poor and working-class communities. Yet, regardless of whether one agrees with all of her suggestions or specific calls for changes in the law, Huntington charts a course that allows us to bring postmarital families’ key concerns to the fore.

Importantly, legal scholars should find value in the piece, even if they question her specific proposals, for Huntington also provides a way out of a key logjam in scholarly debates about family law norms. One camp seeks to strengthen the norm of marriage; the other camp proposes we shift to a family law model that concentrates more on strengthening and supporting parent-child relationships. (P. 172.) Huntington instead argues postmarital couples’ post-union relationships cannot be disaggregated from the effects these relationships have on their children. When a couple’s romantic connection wanes, postmarital families need an administrative or institutional mechanism that allows them to set rules and develop expectations around their mutual co-parenting roles. (P. 231.) Huntington explains that divorcing couples —putting aside the existing problems in divorce law and family law institutions4—know they can depend on an established structure for working through conflicts as they shift to a co-parenting relationship. Huntington seeks to provide the same benefits to co-parents in postmarital families.

Huntington also does an outstanding job pushing family law scholars to confront their deepest anxieties about how postmarital families operate – and she shows that we can do so without pathologizing the families involved. Specifically, Huntington openly and honestly engages with the churning dynamic that seems to affect modern postmarital families. (P. 195.) Many co-parents, particularly male parents, find it hard to maintain relationships with their children because the children’s mother goes on to form a new relationship, and often a new postmarital family. When this second postmarital family is formed, the biological father of children from the first postmarital family tends to get crowded out of his children’s lives. Also when a mother takes a new partner and has another child, her new partner may not devote the same care and attention to biologically-unrelated children in the family as he does to his own. A postmarital father with children may also form a second postmarital family, thus weakening his connection to his children from his prior relationship. Alternative dispute resolution agencies could serve an important role here, helping postmarital families develop co-parenting standards that manage these kinds of disruptive family changes. It is refreshing to read a family law analysis that deals with the problems caused by parents’ shifting romantic allegiances without casting judgment on those involved.

In short, Postmarital Family Law is likely to become a key resource for family law scholars interested in charting the dynamics of family life outside of the traditional nuclear family. Huntington’s careful, respectful, and creative approach to understanding postmarital families makes the article an exemplary piece of scholarship. Her work demonstrates the rich possibilities that are available when we shift our attention away from so-called traditional families and consider new family forms without pathologizing these alternative arrangements. She further shows that we can identify the core values that must be advanced to cultivate a nurturing and supportive family unit for children. Scholars can then use these values to imagine new legal structures that are more attentive to contemporary material and social conditions.

  1. Fifteen states have statutes that provide for this default rule. (P. 204 n. 204.) The maternal custody presumption continues to be enforced in these states despite the fact that these laws appear to violate basic equal protection standards. By contrast, some state statutes technically give both parents equal rights to a “parental relationship” when they have a child out of wedlock; however, these statutes still as a practical matter do not guarantee fathers’ custodial rights. (P. 204.) Courts may recognize a party as a legal parent, but give that party no custodial rights until one petitions for relief. This regime often adversely affects nonmarital fathers.
  2. As Huntington explains, courts assume that marital families have two emotionally invested parents deserving of legal rights, and nonmarital families have one, the mother. As a result, nonmarital fathers are forced to jump multiple hurdles to establish legal rights and authority over their children. (P. 203-04.)
  3. Some would argue that child support law is actually a kind of postmarital law, as it has been historically used to ensure unmarried fathers support their children.
  4. Huntington recognizes that family law is far from ideal at present and that the divorce process presents challenges for marital families. However, she explains that these problems in family law are beyond the scope of this project. They are not relevant to her current concern: exploring the way laws premised on marriage create problems for unmarried persons. (P. 171 n. 17.) Scholars may disagree with her view, and see productive commonalities shared between divorcing and postmarital mothers.
Cite as: Camille Gear Rich, Adventures in Co-Parenting: Charting a Course for Postmarital Families, JOTWELL (August 2, 2016) (reviewing Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167 (2015)), https://family.jotwell.com/adventures-in-co-parenting-charting-a-course-for-postmarital-families/.

Article published in Southern California Interdisciplinary Law Journal, Volume 25, Number 2, Spring 2016.

Partial Introduction

Last year marked the fiftieth anniversary of the Moynihan Report, a Senate report commissioned by Daniel Patrick Moynihan in 1965 to investigate what he claimed was a social and cultural crisis compromising the family formation process in the African American community. The report’s anniversary seems the perfect occasion to reflect on the continuing cultural significance of the political construct called the “welfare queen,” as the report is widely viewed as providing the factual and political context to create this troubling political figure. The report was framed as an attempt to diagnose the social, economic, and cultural conditions that produce a disproportionately large number of black, single, female heads-of-household with children, as compared to other racial groups. Because many black families deviated from the cultural norm of the male head-of-household or breadwinner, Moynihan argued that these families were destined to be long-term dependents on state assistance programs. As time has progressed, evidence has made it clear that economic conditions, rather than culture, powered the rise of single, female heads-of-household in the United States. The welfare queen construct, however, inflicted a great deal of social and political damage before these realities were understood.

Article published in:

Abstract

In recent years, antidiscrimination scholars have focused on the productive possibilities of the “universal turn,” a strategy that calls on attorneys to convert particularist claims, like race discrimination claims, into broader universalist claims that secure basic dignity, liberty, and fairness rights for all. Scholars have urged litigators to employ universalist strategies in constitutional and voting rights cases, as well as in employment litigation. Thus far, however, arguments made in favor of universalism have been largely abstract and theoretical and therefore have failed to fully consider the second order effects of universalist strategies on the ground. In this article we challenge the prevailing arguments in favor of universalism by exploring the market consequences as lawyers shift from particularist Title VII race discrimination claims to universalist Fair Labor Standards Act claims. Derived from a preliminary review of case filing statistics and qualitative data from a purposeful sample of attorney interviews, our research has uncovered forces we describe as “post-racial hydraulics,” a set of non-ideological, economic, and pragmatism-based drivers produced by the trend toward universalism. We explain why “post-racial hydraulics” must be understood as key but previously unexplored factors in racial formation. Evidence suggests that, left unchecked, these non-ideological drivers will have substantive ideological effects, as they threaten to fundamentally reshape the employment litigation market and alter our understanding of race discrimination.

Review of Marriage Markets, How Inequality Is Remaking the American Family by June Carbone & Naomi Cahn published in the Texas Law Review, Vol. 94:387.

Partial Introduction

Obergefell v. Hodges, the recent Supreme Court decision recognizing gay Americans’ right to marry, demonstrates that the United States continues to promote marriage in both direct and subtle ways. Obergefell is one of the government’s less subtle recent efforts to market marriage. The decision makes it clear that from the State’s perspective, marriage remains a near ideal form of social union. As Obergefell explains, marriage in the United States is an institution of “transcendent importance”; it is “essential . . . to the human condition.” Marriage is special because it “allows two people to find a life that could not be found alone.” The Supreme Court’s romantic musings in Obergefell about the centrality of marriage will seem particularly ironic to readers of the book Marriage Markets: How Inequality is Remaking the American Family, for the Court’s words stand in stark contrast to the account the book’s authors provide of the marriage market in the United States.