Abstract
Excerpted From: Thalia Gonzlez and Rebecca Epstein, Critical Race Feminism, Health, and Restorative Practices in Schools: Centering the Experiences of Black and Latina Girls, 29 Michigan Journal of Gender & Law 409 (2022) (146 Footnotes) (Full Document)
For decades, civil rights and education justice reformists have sought to address structural discrimination and bias as fundamental drivers of education laws and policies that serve to police, punish, and exclude students with intersectional identities. Racial and gender inequities in school discipline and policing practices have been clearly established, dating back to this country's earliest days and continuing today, with anti-Blackness and racism at their core. In 1975, extensive research by the Children's Defense Fund (CDF) found that Black students experienced educational conditions marked by “a pervasive school intolerance for children who are different”; contemporary research and data document continuous, clear, and persistent patterns of systematic racialized and gendered discipline disparities.
A range of responses have emerged to address education inequality resulting from the disparate use and impact of disciplinary practices in K-12 schools. This Article specifically focuses on a principal intervention in law, policy, and practice: school-based restorative justice. First introduced in educational systems in the 1990s, restorative justice has not only been increasingly adopted in practice, but has been formalized in school and district policies and codified into state law. While core principles guide the application of restorative practices (RP) in schools, there is no single, universal definition. A survey of the existing literature shows that multiple terms are used to refer to RP in schools, including restorative interventions, restorative practices, restorative measures, restorative approaches, restorative discipline, and restorative justice. The variances in these terms reflect the wide spectrum of scholarly and disciplinary approaches to RP, as well as RP's association with other school policies and practices.
The implementation, e.g., form and function, of school-based RP falls primarily into three main categories: proactive, reactive, or integrated (whole-school). The central aims of proactive RP are developing relationships, community building, social-emotional learning, and empowerment and resilience skill-building. Reactive RP is principally focused on remediating harm and restoring relationships in response to incidents of harm or breaches of community norms. Integrated and whole-school RP models are implemented as multi-tiered systems of interventions that include both proactive and reactive practices to support a relational ecology. The objective of whole-school approaches is to dismantle authoritarian cultures and construct in its place a “culture of high expectations with high levels of support that emphasizes doing things ‘with’ someone as opposed to doing things ‘to’ or ‘for’ someone.” As school-based RP has gained prominence in education law, policy, and practice, scholars and practitioners have called for development of race-conscious, resilience-building strategies and resistance to reinforcing matrices of oppression.
The framing and naming of RP as an “alternative” to punitive and exclusionary discipline has shaped the current literature in several ways, most significantly by focusing on RP as a behavioral intervention that is reactive, aimed at reducing discipline incidents and a replacement for punitive and exclusionary practices. Studies of RP in this context-- which have taken several forms, including randomized controlled trials, qualitative analyses, and single group design have demonstrated positive outcomes across a host of indicators, but they have consistently contextualized RP as nested within and adjacent to school discipline, racial justice, and civil rights. This framing is essential to dismantling highly harmful learning structures and environments that perpetuate structural race discrimination, but it has also generated a host of unintended consequences. Using original empirical research on the experiences and perceptions of Black and Latina girls with school-based RP, we focus on the need to construct more proactive, inclusive frameworks of RP to counteract an understanding of RP as predominantly reactive.
[. . .]
Our study highlights the importance of understanding RP as a non-disciplinary intervention that is associated with a vast array of benefits to girls' health and wellness, including positive connectedness, school climate, social-emotional literacy skills, and improved conditions for mental health, resilience, and empowerment for Black and Latina girls.
The goal of this Article, however, is not simply to present those findings; it is also to offer a critique of the current state of RP research and reform. It challenges those engaged in dismantling structural discrimination in education--whether activists or academics--to depart from the dominant formulation of research, reform narratives, and public perception, and apply a critical race feminist lens to their work. We know that the idea of accounting for the unique experiences of those with intersectional identities may be met with skepticism and even hostility. But in the words of Frederick Douglass, “[i]f there is no struggle, there is no progress.”
And--more than simply studying girls as a unique and valued population-- we challenge the field to treat girls as experts in their own lives. Girls should be co-producers of research that puts a critical lens on gendered racial oppression in social institutions and redesigns laws, policies, and practices. Our study centers the voices and experiences of Black and Latina girls. Across the country, in rural and urban districts, and over many months, we listened to girls themselves. Having consulted with them about their experiences and learned from their analyses, our study reveals the promise of proactive, non-disciplinary RP to restructure school environments to become more responsive to intersectional needs. This, alone, is a significant contribution to the extant literature.
In addition, this study extends the work of others in the fields of health and education by showing how RP--when disassociated from school discipline in both form and function--promotes protective health factors for girls of color. It provides evidence that RP can support the mental health and wellbeing of Black and Latina girls and create spaces that build tools of resilience that can serve to counteract the complex array of systemic structures and practices that disempower, disenfranchise, and harm educational and health outcomes.
The girls who participated in our project show that school-based RP is, above all, an environment of connection. This is true at the micro-level, by providing students with a sense of safety, trust, supportive relationships, and positive learning environments, and the macro-level, by extending beyond traditional disciplinary boundaries. But these findings only establish a foundation, not a ceiling, for work that examines RP. Future research (theoretical or empirical) should probe intersectional invisibility in RP practice, policy, as well as antiracist education movements. In addition, in line with our findings, subsequent research should examine RP as a school-based intervention and as a means of improving individual and population health outcomes. Finally, upcoming work should focus not only on the reactive frame of RP, but also its proactive possibilities.
No matter what direction is taken, placing girls and women of color at the center of antiracist education theory, research, and practice is essential. Without this centrality, it is unlikely that any law, policy, or practice can truly advance equity and justice in education.
_______________
Thalia Gonz lez is a Professor of Law, Harry & Lillian Hastings Research Chair, University of California Hastings College of the Law; Senior Scholar, Center on Poverty and Inequality, Georgetown University Law Center.
Rebecca Epstein is the Executive Director of the Center on Poverty and Inequality, Georgetown University Law Center.
Title: Race-1 Race-ing Antitrust
Author: Bennett Capers and Gregory Day
Abstract
Excerpted From: Bennett Capers and Gregory Day , Race-ing Antitrust , 121 Michigan Law Review 523 (February, 2023) (317 Footnotes) (Full Document)
Antitrust law has failed people of color--or, at a minimum, failed to achieve the extent of its promise. Because antitrust's purpose, at least since the 1970s, has been to promote a concept known as “consumer welfare,” antitrust law is unconcerned with whether exclusionary conduct has injured historically marginalized groups. In fact, antitrust presumes that most types of anticompetitive behaviors benefit consumer welfare even though monopolies and trade restraints have--with little attention--disproportionally harmed minority communities.
Consider a few examples. An array of law schools historically prevented non-white students from enrolling so that white people could monopolize the legal profession, while labor unions banned Black workers from their ranks. More recently, people of color have found themselves the unintended victims of anticompetitive practices. When grocery stores merge, it can result in better and cheaper foods for affluent, predominantly white communities. In poorer areas, however, mergers have shuttered local stores to the degree that many low-income neighborhoods lack a single place to buy fresh foods--and as dollar stores replace grocery stores, “food deserts” have spread throughout minority communities. Along the same lines, bank mergers have improved welfare in affluent areas but closed branches in minority neighborhoods. As a result, poor people-- disproportionately of color--often have little choice but to patronize more expensive payday lenders and check-cashing stores. Regardless of whether a monopolist's motivation was primarily business-minded or discriminatory, people of color are too often the ones harmed.
Despite these race effects, the question of whether an anticompetitive act has harmed people of color is absent from antitrust's framework. Per antitrust's “consumer welfare” standard, exclusionary conduct must raise prices, lower quality, or economically harm consumers collectively to offend antitrust law. If consumers writ large gained a benefit (e.g., the market is now more innovative), then no violation of antitrust law has typically taken place. Further, many antitrust courts and scholars assume that restraints of trade tend to improve consumer welfare, which has enabled defendants to generally win antitrust cases, including in cases resulting in disparate racial harms. Thus, by assessing consumers monolithically, antitrust law protects those with market power and ignores types of anticompetitive acts while turning a blind eye to the welfare of minority communities. Antitrust's indifference to disparate racial effects remains prevalent to the degree that a notable antitrust scholar endorsed this framework in 2021: “Antitrust policy, in contrast to legal policy generally, is not the appropriate tool for pursuing particular goals of social equality ....” Further, “race and gender equality” may be “essential policy goals, [but] they are best left to the constitutional and statutory institutions intended to address them.”
But antitrust's deference to consumers writ large, and indifference to race effects, is neither foreordained nor obvious from the Sherman Act itself. And though many jurists treat antitrust law as fixed, it is not. This Article offers a different way of conceptualizing antitrust law. We assert that antitrust law cannot achieve its true purpose so long as enforcement remains focused solely on consumers collectively, which ignores the steeper costs paid by minorities. In fact, the deference in antitrust's approach is shown to stem from how enforcement has adopted the perspective of majority groups who are more likely to benefit from concentrated markets. An analogy to criminal law or tort law may be useful here. Both criminal law and tort law have a “reasonable man” problem since the reasonable man is usually prefigured as white, middle class, heterosexual, able-bodied, and of course, male. Similarly, antitrust has a “reasonable consumer” problem insofar as it uses a standard that is facially neutral but in fact obscures differences along race. In essence, enforcement ignores the economics of being a minority.
To illustrate, consider the higher switching costs (i.e., the costs of changing products or services, among other things) levied on people of color and low-income groups. If a company monopolizes a pharmaceutical market, affluent patients can typically acquire the drug via their insurance plan or pay higher prices. By contrast, less well-off individuals--again, disproportionately people of color more likely to (1) forego healthcare due to monopoly rates, (2) sacrifice other necessities to do so, or (3) turn to self-medication. The effect is that people of color must often endure greater costs created by monopoly conduct--that is, an elevated switching cost--yet antitrust courts typically assess conduct by whether monopoly prices impacted consumers as an undifferentiated mass. At best, this framework implicitly assumes that minorities suffer (or benefit) from trade restraints in lockstep with dominant groups. At worst, this framework simply does not care.
A similar dynamic is that antitrust errs against liability because, as the Supreme Court has held, monopolies are often expected to improve consumer welfare. We show, however, that firms in concentrated markets can more easily, and are more likely to, prioritize dominant groups-- notably white consumers. By remaining indifferent to the varying plights of consumers, antitrust law subordinates the welfare of people of color to white majorities and the idealized white consumer. In fact, the very term “consumer” plays favorites along lines of race and class by prioritizing those with resources. Thus, as an initial matter, this Article argues that antitrust law gauges consumer welfare from a white perspective and, as a result, people of color have predictably suffered heightened costs. And yet reimagining antitrust law is possible.
In important part, we assert that antitrust law is ideally suited for the task of remedying systemic inequalities in market systems. Antitrust's concern lies with structures; just as enforcement delves into whether anticompetitive conduct has made a market more or less likely to benefit consumers, antitrust law could ask whether anticompetitive conduct has altered a market's structure to erode the welfare of specific groups. To put it another way, antitrust's claimed purpose is to enhance consumer welfare by maximizing allocative efficiency, though it has largely ignored the preexistence of economically inefficient racial structures such as residential segregation; in fact, modern antitrust enables inefficiencies insofar as it permits the misallocation of resources along lines of race rather than their most productive uses. Since racism is a structural inefficiency based on excluding certain types of actors from the market, we argue that enforcement must inquire into whether a market's competitive structure has inflicted unreasonable costs on minorities.
There is one more thing to say before this Article begins in earnest, and that is about the moment we are in. Since the killing of George Floyd, this country has undergone a racial reckoning. Along those lines, the time is ripe for a recognition of antitrust's race problem and for a reimagining of antitrust's possibilities. Cracks have even begun to form in antitrust's framework as enforcers notice the disparate experiences of minorities. In 2020, Commissioner Rebecca Slaughter of the Federal Trade Commission noted that antitrust's “value-neutral” stance is “bizarre.” She cited healthcare as an industry in which porous competition has caused Black consumers to incur greater costs such as inadequate treatment, concluding that antitrust must become anti-racist rather than adhering to the fa‡ade of neutrality. And in 2021, President Biden sought to increase antitrust enforcement via executive order, acknowledging that some restraints inflict disproportionate costs on “[c]ommunities of color.” In a sense, this Article is responding to a moment that has been over a century in the making. Its ambition is nothing short of making antitrust anti-racist.
This Article proceeds in four parts. Part I details examples of anticompetitive acts that have intentionally or unintentionally harmed people of color. Part II reviews antitrust law to explain why the consumer welfare standard has so far failed to remedy anticompetitive conduct that disproportionately harms people of color. Part III relies on theories of racial capitalism to excavate the racial history behind antitrust's emphasis on consumer welfare. It shows that racial discrimination is a historic feature of economic systems, and antitrust is no different. This sheds light on why a supposedly colorblind antitrust law has actually generated disparate effects. Finally, Part IV argues for another way. Relying on Critical Race Theory and returning to the common law that preceded the Sherman Act, as well as the Sherman Act's legislative history, it reimagines antitrust in a way that would acknowledge, and benefit, all consumers. Indeed, it goes a step further and argues for a reconceptualization of antitrust's purpose. Instead of the narrow purpose of promoting consumer welfare, antitrust should and can return to its earlier, broader purpose of promoting community welfare, whether we are consumers or workers. Put differently, it should return to promoting the welfare of us all.
[. . .]
Antitrust has a race problem. But as we have demonstrated, this problem is not inevitable. Change is possible. We have mined the history of antitrust law and consumer welfare--then leaned on CRT's lessons--to reimagine antitrust. Our goal in proposing a community welfare vision is to restructure enforcement to benefit us all, including marginalized groups. The task, now, is simply to begin.
______________________
John D. Feerick Research Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School.
Assistant Professor, Terry College of Business at the University of Georgia; Courtesy Appointment, University of Georgia School of Law; Visiting Fellow, Yale Law School's Information Society Project. From Professors Capers and Day:
