This Article is a result of the authors' participation in the Association of American Law School's Crosscutting Program ("The More Things Change ... : Exploring Solutions to Persisting Discrimination in Legal Academia") at the Annual Meeting in Washington, D.C., in January 2015.
Th[e] Program dr[ew] from empirical data, legal research, litigation strategy, and personal experience to both further conversations about the persistence of discrimination in the legal academy and activate strategies for addressing ongoing structural and individual barriers. Intersectional bias compounds many of these challenges, which range from the discriminatory actions of colleagues and students, to the marginalization of particular subject areas in the curriculum, to structural hierarchies in the profession [at HBCUs generally, and more specifically at HBCU law schools]. (1) "Surely one of the most striking features [also observed by the authors] of human dynamics is the alacrity with which those who have been oppressed will oppress whomever they can once the opportunity presents itself." (2) This Article examines several major issues that persist for Black female faculty generally, but more specifically at HBCUs. Nevertheless, examples have been extracted from a cross-section of female faculty members who have encountered similar instances of discrimination or discriminatory practices against female colleagues.
After the Introduction, Part I offers an overview of the history/evolutions of HBCUs. Part II analyzes analogous systems, which operate similarly to and influence historically black colleges and universities. Part III develops the concept of women pretexting authority ("WPA"). Part IV discusses legitimate processes and mechanisms to address infractions at HBCUs after female faculty complain. Part V proposes recommendations to address the persisting problem, until a conclusion is finally reached in Part VI based on the arguments set forth in the analysis.
History and Evolution of Historically Black Colleges and Universities (HBCUs) Law Schools
Founded in the 1800s, the nation's Historically Black Colleges and Universities--HBCUs--have the mission of providing access to higher education for society's underprivileged and disenfranchised. (3) In an effort to assist with the education of newly freed slaves in the post-Civil War era, the federal government created HBCUs. (4) The purpose was to help newly freed slaves gain employment through an industrial education rather than provide knowledge, which was the primary purpose of predominately white institutions ("PWIs"). (5)
Private and Public
There are 105 Historically Black Colleges and Universities in America, and all have contributed to the nation's growth. (6) Forty HBCUs are four-year public institutions and forty-nine are private; there are eleven two-year public institutions and five two-year private institutions. (7)
The Six Law Schools at Historically Black Colleges and Universities
The authors hail from Thurgood Marshall School of Law at Texas Southern University, one of six HBCU law schools. David A. Clark School of Law, University of the District of Columbia, Florida A&M University School of Law, Howard University School of Law, North Carolina Central University, and Southern University Law Center complete the list. (8)
The emergence of these institutions afforded Blacks the chance to attend law schools and become successful practitioners. (9) Although Black women entered the legal profession as a result of the Black law school movement, the women pioneer graduates of these law schools, unlike their male colleagues, did not gain notoriety. (10) Thurgood Marshall was one of the Black legal practitioners who received notoriety." As a result of his many contributions to the Civil Rights movement and to the plight of Blacks and other minorities, Texas Southern University asked if Marshall would endorse its law school and allow it to bear his name. In 1976, years after Brown v. Board of Education (12) and Sweatt v. Painter, (13) the name was changed to Thurgood Marshall School of Law (14) ("TMSL"). TMSL is often referred to as "the house that Sweatt built." (15) Nevertheless, let us not forget the sweat of many women contributed to that success.
Women's history in the United States continues to evolve. Historically, American women had three choices: they could "be a nun, be a prostitute, or marry a man and bear children." (16) In defiance, or perhaps in spite of these specific choices, Black and White women came together to create more opportunities and force men to accept their evolving roles.
As recently as 1970, women were testifying before Congress concerning the need to extend sex discrimination legislation to the higher education academy. (17) Recognizing the inequities and injustices suffered by women on campuses across America, pleas were made to address the discriminatory practices and prejudicial attitudes against women. (18) The speakers foreshadowed that women would continue to encounter discrimination in "academic institutions which claim to preach the tenants of democracy and fair play." (19) Women started to speak up and speak out about the issue.
A White female colleague analyzed the situation in the legal academy, where women were facing discrimination at law schools where the faculty was traditionally comprised of White males. (20) She stated that she wanted to speak in her voice as a White woman from a working-class background who did not meet the traditional law school faculty criteria. (21)
She addressed the standards of tenure and promotion, which reflect a gender bias. (22) She noted that some of the issues could also affect minorities, particularly Black women. (23)
Deploying Drones (24) to Make a Record: Expanding the Law to Include Injuries to Black Females--the Truncated Class at HBCUs
The authors, like one of their White female colleagues, (25) are writing in their voices, as Black female law professors at an HBCU who have experienced the same concerns, but are oftentimes compounded because they are Black females in peculiar settings that can be quite hostile. (26) Generally, "like [W]hite women, [B]lack women experience occupational segregation, a gender wage gap and the challenge of balancing family and work. We are discriminated against because we are [B]lack. We are discriminated against because we are women. We are discriminated against because we are both." (27) Even though race and gender help us understand the historical context, "legal rules treat the Black woman's life as a 'mixture' of physical and experiential elements, including but not limited to, race, gender, and sexuality[,] ... the law ... deal[s] with one element at a time to the exclusion of other elements." (28) Legal rules treat Black women's issues from two constructs--"The essence of gender is the white woman model; the essence of Blacks is a Black male model." (29)
If you are a White woman, you are generally a minority based on gender. If you are a Black male, you are generally a minority based on race. Both groups may argue that discriminatory practices are worse based on belonging to either minority group--gender or race. However, what if you are a member of both groups? The authors argue that this bifurcated "double jeopardy" (30) membership actually creates an invisible, unintended, and unrecognized third group if you are a Black female working at an HBCU, "the truncated subclass." (31) In this situation, you are not a White female, and you certainly are not a Black male. Therefore, having partial membership in both groups actually exposes the Black female to a plethora of discriminatory practices, without an adequate remedy. In other words, you are not recognized as a female minority because you are at an HBCU, and society has difficulty fathoming that an HBCU would engage in discriminatory activity (32); thus, you are not protected because your situation does not fall squarely within the two constructs. This construct remains a powerful framing device in social and political interactions and in policy debates, often in ways that remain concealed behind the rhetoric of colorblindness [fairness/equality]. (33) "In order to get beyond racism, we must first take account of race [Black females]. There is no other way. And in order to treat some persons equally, we must treat them differently." (34) This is the situation with the Black women in the truncated class.
The hidden hand (35) is society's misunderstanding of how race and gender works "at the level of institutions." (36) "How do institutions [especially HBCUs] that are, on their face, scrupulously race neutral nevertheless produce racially imbalanced outcomes?" (37) The real question becomes, how could Black male leadership possibly discriminate against Black female faculty members at HBCUs?
As the social sciences increasingly embraced an understanding of human behavior that focused intensively on individuals and their beliefs and habits, no serious exploration of this institutional racism hypothesis [Black females being discriminated against Blacks at HBCUs] ever got off the ground. As a result, policymakers have been left with a poor understanding of the institutional mechanics that perpetuates racially disparate conditions.
Therefore, at HBCUs this type of hidden hand, (38) perpetual discrimination goes under the radar. Thus, the deployment of a drone's precision is required to attack the systemic problem. The issue is "a deeply ingrained 'systematic problem,' not amenable to one-dimensional diagnoses or treatments." (39) The bifurcated "double jeopardy" (40) policy actually masks practices that continue to contribute to racial inequality for Black females. (41) The bifurcated system is so "entrenched, and existing approaches have proved incapable of loosening their hold." (42) The truncated subclass (43) approach "would allow regulators [ABA, AALS...