. they returned to the state as a local religious groups for material aid and personal guidance. but even the temporary measure intended only to me to meet the immediate physical needs of people devastated by the depression. the program expired in 1935 replaced in part by two programs at the heart of the second feel appeal the works progress administration and the social security act. because the programs created a permanent structures that overlap in september of 1935 as they were enacted the roosevelt administration sent a letter to the clergy asking what they thought particularly these two programs and he received more than 12,000 in two months. 84% were favorable in tone particularly towards the social security act which made provisions to the overly and the disabled. the editor of the white

methodist journal wrote above all else as i see it is the social security program for the first time in history we have a national administration seeking to realize practically all of the churches. the catholic protestants and jews. for the religious leaders like this one the state represented a prodigious achievement, not in an apartment. a few clergy began to express concerns that would go more a spread by the late 30s especially in the white protestants. one mississippi presbyterian and self-proclaimed southern democrat held on the community members that now had some place else to go. when they once had community contact for the cooperation and the incident implemented they now look to the government for everything. now it's possible federal aid

made it easy for some families to disconnect for middle-class churches where they felt out of place. now they have options other than the local paternalism and they questioned the new deal to express the alarm and outrage. it grew during the 1930s and roosevelt programs remained anonymously popular for decades afterwards. black-and-white workers were loyal to the president as they credited pulling them out of the depression for the middle class. it's late in the future. the memory of the inadequacy of the private relief and its other collapse in a moment of crisis. in the 30s and 40s the end graced the welfare state. but soon to religious institutions take the roles not only complement three to the welfare state but also in fact intercooled to it and funded by it. after world war ii the nonprofits worked with

subsidiaries in the government to provide overseas relief. the state expanded under both republican and democratic presidents in the 40s to 60s. federal officials relied on the private subsidiaries including religious organizations to administer new programs. as conservative critics of the welfare state rose to power in the 80s and '90s they pushed the further services but it was a democratic bill clinton i mentioned in the beginning who signed a personal response ability and work opportunity reconciliation act into the wall in 1996 with the charitable choice provision that ensured that religious providers receive consideration. the successor established in the initiative allowed at the churches and not just religious charities to receive federal funds for the welfare state shrink and increasing proportions of the remaining funds went to religious providers. more than 80 years since they established a federal safety net and it's hard to imagine the

united states without a basic protection for its citizens. but many conservatives and libertarians call for just about come about, the past that never existed in which some capitalism and sure to the robust economy in which the deserving poor received what they needed from the generous private charities. i'm not sure where that money came from. but they've become so deeply entwined in the federal government and the post-world war ii decades has been dismantling the welfare state they also serve as dismantling themselves. [applause] >> good afternoon. in november, 2001, the first lady offered the presidential weekly radio address. she invited listeners to a worldwide effort to eliminate the brutality against women and children. she focused remarks on

afghanistan. she claimed that all people of goodwill including many muslims deplore the taliban treatment of women and girls. mothers couldn't leave their homes unaccompanied and suffered beatings for laughing out loud. the girls couldn't attend school women had their fingernails pulled out if they dare wear nail polish. while mrs. bush highlighted the situation in afghanistan, she compared the status under the taliban and to the places across the globe affected by the al qaeda terrorist network. the first lady's impulse to protect the women and children have a long history in the united states. since the founding era they have rumors of china, widow burning in india, in the middle east come and abandoned orphans in central america. they've also expressed concerns for foreigners within the u.s. boundaries including native american women and nomadic encampments and children working in urban factories. for more than two centuries, americans have argued that women

and children demanded not only our attention and sympathy but also saving actions. literary critic amy kaplan called this imperial domesticity in her study of the antebellum home manuals, she found female writers focus on problems around the world. these writers offered several list visions of domestic life to savidge is in both the u.s. and abroad. today, i would like to consider the operation of the imperial domesticity to particularly the times of war. mrs. bush's remarks interest me not only as a statement about proper domestic organizations but also as an example of the wartime rhetoric. she offered her radio address as the u.s. initiated a campaign in afghanistan and followed it with a ground invasion that drove the taliban from power. the u.s. was at war with a country populated by women that americans want to save.

because women and children are typically considered noncombatants during conflicts both supporters and opponents of the various war argued for protecting them from harm. at the same time the discourse of the promised the city of firms that they leave terrible lies and require religious cultures. the religious leaders and representatives who often invest both warfare and the nations regard for women and children with moral meaning has played an important role in blurring the lines between the call for protection and projects of liberation. i want to review this. the underscore the difference in protection and liberation in the ways that classify native americans native americans and muslim women and children as innocent requiring deliverance often by violent means from the

extremist terrorist relations. in november, 1864, the kernel led to the colorado militia to the edges of the indian encampment. in one of the most infamous attacks by the american armed forces on the unsuspecting community, his men killed scores of women, children and elderly members of the tribes and the evidence of the battles they testify that they've punished indians who resisted american authorities and have attacked innocent white people. he also suggested that they killed but few women and children. some of the command agreed. one captain offered a gruesome details about the attack. i was present at a massacre of 300 indians mostly women and children. others did fire. the captain recalled in a letter to his mother it looked too hard for me to see little children on their knees begging for their

lives come to have their brains out like dogs. this was 1864. late in the american civil war and not long after the army ordered that established criteria for inflicting violence against civilians. in 1862, president lincoln commissioned a code of war conduct often called the leaders code just as the union was about to initiate a war against the confederacy. the code included a section on noncombat since and it affirmed that advances in the civilization required the distinction between private individuals belonging to a hostile country and the hostile country itself with its men and arms. while establishing a theory of protecting civilians, the code included the cost of military necessity. sometimes the end of securing the end of the war demanded only targeting the armed targeting only the armed enemies but also the person whose incidentally unavoidable. while the coda certainly shaped

union engagement in the south, historians debate is impacted in the country. most didn't concede that indians were legitimate combatants. they were viewed as racial and cultural. military officials argued that the indian style warfare and their nomadic encampments made it difficult to defeat them and officials and opted to the necessity to authorize the devastating attacks on entire villages which often cause high rates of women and children casualties. even so, the protocols for the citizen protection of detail in the civilian protection as detailed in the code reflected the ambivalence many americans felt about the attacks that harmed women and children and responses revealed the strength of those convictions. within days of the attack critics from across the political spectrum comes under the general. leaders of the christian organizations as well as journalists for the religious periodicals added their voices to the tide of condemnation.

when the colorado governor published a report claiming the troops had indiscriminately slaughtered indians a presbyterian paper reprinted it under the headline indians murdered by the troops, national sins demand punishment. they called a massacre a disgraceful act unfit for the age that we live. over the next decade it came to symbolize the american assault on indian women and children. to be sure and high indian writers counter to stories the attacks on american and a sense. religious leaders acknowledge these attacks but typically attributed to them to the field of federal indian policies and brutal actions by overland emigrants. this willingness to condemn the u.s. offenses while contextualizing indian ones that unlike the native americans they were civilized enough to refrain from killing innocent bystanders. in this way determining the moral forms of warfare figured in america's classification for

civilization and savagery. americans circulated a variety of images of indigenous women on the helpful to the promiscuous. they also envisioned them as domestic slaves. the stories of overworked indian wives confirmed the notions that native women wanted for freedom from their husbands to be a 19th century writers and the religious press focused on indian women as they articulated concerns about innocent noncombatants at the same time they argued for the transformation. they identified as quintessentially friendly because they did not associate them with armed resistance. they assumed that indian women would form a new kinds of marriages once free from indian men domination. the casualties focused on difficult questions about civilian casualties but relied

on the tropes of imperial dumbest a city that categorize indian women as a particular kind of innocent. similar to the indian war outcry over president obama's expanded program includes imperial thomaston city rhetoric of protecting and liberating women. critics of the program points to high numbers of casualties. religious leaders and writers in the press also criticize high civilian casualty rates invoking the wall of the principles as well as the theory to argue that the program must be radically altered if not ended altogether. contemporary law of war includes regulation for the conduct and provide for the distinction directing over drinks for distinguished combatants and civilians. like his predecessor president obama had a warped law on the principles and the drone of policy specifically.

the administration officials have stated that it wouldn't be consistent in the wall of the war to continue in operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage. the law of war principles overlap in the centuries-old tradition of the just war theory created the theologian articulated some of these principles which the dominican theologian systematized in the 13th century. the christian theologians settled on the two sets of principles. criteria for going to the war and measures for the conduct to read several just war criteria including necessity, distinction, proportionality, the eventually were accepted by the international community as a part of the law of the war. in the public discussion of the drones president obama has evoked language from the just war tradition. he has insisted that they can be undertaken only if there is a near certainty that no civilians will be killed or injured.

he calls these losses haunting but they were also necessary if the u.s. was to reduce a casualty the casualty that would result in the terrorist networks operate it without restriction. the use of drones in the war on terror that obama has declared as part of a comic book, just war which in last resort in self-defense. critics regularly found their displeasure with the policy in the feature stretching from 2009 to 2014. major news outlets included bloody descriptions of women and children harmed by drones. religious leaders and writers in the religious press employed at the employ the just war language to express their concern for instance in a 2013 anti-drone video published by a belief net christian and jewish leaders criticized obama and claimed that they violated the

principles of necessity proportionality and distinction. several religious bodies ranging from the national conference of catholic bishops to the moderator disciples of christ to the national black church and initiative has also publicized their dissent. even religious and writers and leaders have expressed support for the war on terror have criticized obama's drove the policy for the failure to distinguish between combatants and civilians. as in other times of conflict conversations about the forms of warfare parallel commentary and enemy domestic patterns. since the beginning americans claimed that afghan women need not only protection from the war of liberation from their husbands and religious leaders. the full body and faith burka have occupied americans imaginations. indeed in 2001 president bush declared his friendship and

support for afghanistan women of color. american religious commentators haven't been among those critics of the burka intact as it is played out in the u.s. religious publication has been surprisingly nuanced on the question of muslim women's dress. the roundtable in christianity today was the kind of evangelical publication in the case. the commenters emphasized the need to listen about their choices. but at the same time the commenters questioned whether islam actually requires this. by questioning the interpretations of the male leaders, they express their concerns about this without criticizing the women themselves or islam as a religion. muslims men it seems are the problem. concerns about the position by the male religious leaders can be found in many periodicals including the feature today about an american female fighter pilots that refused to follow the army stipulations while off

base in saudi arabia. in the articles these writers expressed their deeper concern of over the freedom and choices. as the religious studies scholar has observed westerners presume that religious agencies require independence and freedom and concluded that muslim women share this conception that are connected to men that restrict their freedom. reflecting these assumptions about the desire to be free religious agents, the periodicals with a wide ranging set highlights muslim women engaged in activities that americans view as independent and free. they feature muslim women that run modeling agencies and to train for the olympics. my favorite is a piece about a pakistani television show called burka avenger. a school teacher by day dawns a tight black burka along with nail polish at night and fights for women's education. these articles celebrated vision of muslim women that value the

notion of beauty, freedom, bobby expression and independence. depictions of living under male constrained by the desire and the liberation and freedom to without american notions have a long history. the 21st century celebrations have a precedent in the missionary pamphlet about the those that haven't met yet their domestic potential. loyal scholars identified as in many forms of literature my sense is that this rhetoric is especially pronounced in times of war. the intensification of the thomaston city matters because the gender vision to shape conversations about who is friendly and hostile, who is a good muslim and who is bad. religious leaders and writers in the press take for granted that women and children desire liberation from the familial and cultural bond. if they were not forced to veil they wouldn't. if they were allowed to wear

nail polish, they would. at the very least the sentiment at the heart of the imperial thomaston city have shaped arguments for protecting innocent civilians from the destruction. i would argue that at times the sentiment also kept americans from recognizing the kind of damage american attacks have done even if their bodies have been spared. they've lost many things they hold dear. the bombs have demonstrated their land. too many family members have died violently. our country has been thrown into the period of turmoil. in the times of war the domesticity can't hold us to focus on the potential for the gender transformation and shifts us away from the tragedies of the war. by linking the war of the protection with visions of liberation americans can avoid reckoning with the violence to women and children experience when the man and the communities and the landscapes are they love

our targets for death and destruction. thank you. [applause] matt deserves the prize for the person that has come the furthest given that he is in germany this year. normally when i come to conferences in the united states but this time i think i have to see see that prize. it they put on a wonderful event. thanks for your hospitality and hard work and putting us all together. my topic today is the religious influence on american foreign policy. excuse me. and especially religions role providing a sense of purpose if you will for the american

foreign policy. it is no surprise to the themes i am going to be touching on our religious pluralism and religious freedom. it struck me listening to the paper so far that those themes keep popping up again and again through not just my paper but a lot of the other papers. and in fact as kathleen said i did change my title and we are now discussing america's mission dot just in the obama foreign-policy that in america's mission in the world and how that is changing in the age of obama. what i argue in the paper is that we papers that we are in a key crossroads where the powerful source of ideas, values and ideology is religion in american foreign policy is changing.

to the present i finished with an epilogue that discussed very briefly george w. bush and barack obama and i didn't want to say very much about either of them because i didn't want to make this work of history a hostage but even that brief things i said about obama in and the two pages on that of the wild are now hopelessly out of date but nonetheless i'm going to try again and more or less argue with myself. traditionally, there have been two basic sources of the religious influence and they are basic but still they are controversial. the first source of the religious influence on the foreign policy is top-down. it should be fairly obvious. it's the president, secretaries of state and defense and others and how he bring that to bear on their foreign policy. and as i'm saying that i'm sure

that a lot of you are instantly sort of giving a laundry list of demonstrably very famously religious presidents in the secretary of state, people like william mckinley, kerry truman dwight eisenhower and others. but this top-down influence can also be rooted in the political calculations. and i wouldn't use richard nixon as an example of someone not in both religion quite a bit, not as frequently as someone like eisenhower and truman or george w. bush but for the political calculation coming and we can tell that because the private record doesn't match up to his political statements. so that's the first is the top-down influence. the second is bottom of obviously the opposite of the top-down influence of people who i've called ordinary americans who who during a terminus amount of pressure to bear on foreign policy. even when the politicians and policymakers wanted to ignore religion they found it difficult to do so because of this relentless pressure from below

from a wide variety of religious groups and actors and groups that are comprised of the very highly motivated people who don't wield power or hold political office but who are emphasizing the importance of values. there are a lot of seats towards the front. i won't bite and i also will not single you out again. i promise. and the goal of these ordinary americans who didn't wield political power were often but not always tied to the religious freedom of the co religion of god and the prominent example is what i've done a lot of work on it runs from the 1880s to the 1970s and today to bring about a change in the actual policy.

this is an example which i can use in the diplomatic history circles where historians want a very clear case of direct impact of cause and effect on foreign-policy and i can use the example of this pressure for the religious freedom in the soviet union. the today to bring about a change despite what policymakers themselves wanted or did not want. so i would argue the religious influence in the american foreign policy has always been there, but its strength in the pervasiveness is a 20th century phenomena. it's preexisted but as a consistent force in america's mission in the world is really something that states from 1898 99 and i would say it is not a coincidence that it became prominent when the united states became a global power but for

the most part it was rarely itself under the threat of attack and so in the need of the powerful and the moral justification or the powerful sense of the moral purpose in the world for this new level of engagement. >> and in a sense william mckinley is the founder of the influence and i'm sure a lot of you know this very famous story of how he was undecided about what to do in the philippines in the late 1998 and he got down on his knees and prayed to god for guidance in the white house and god told him to annex and colonize the philippines. after george w. bush was one of the most religious president in history certainly in american diplomatic history harry truman eisenhower and the usual suspects who i mentioned earlier in my talk. the apogee of the influence seems to me came recently in the george w. bush come in the age

of bush this is obviously true in the top-down sense from the white house not just the president himself, the figures like condoleezza rice and stephen hadley. all through the bush administration of the religious influence was maybe not predominant, but certainly very prevalent. there were a lot of of demonstrably religious officials presiding with people like donald rumsfeld and paul wolfowitz and others were not the most spiritual men, but a lot of pentagon briefings begin during the presidency with powerpoint slides that would start with a biblical scripture or verse were some sort of usually christian but overtly religious invocation. this is also true in the bottom up since we have heard a lot about this already atomized into a bush politics which not only recognized but encouraged the political activism command this is true in the domestic sense

but also it was repeated in the foreign-policy sense. the foreign-policy through and through maybe wasn't indicted were driven by religious and i'm not saying the united states at a had a certain foreign-policy in pursuit of particular religious goals but in a very obvious way it's a fused the bush administration foreign-policy. the bottom-up influence didn't begin with bush. he didn't create it even though he did encourage it. it's something that has been consistent through the 20th century but surged in the '90s with the most obvious example being the bottom-up pressure that led the congress to pass the international religious freedom act in 1998 very much over the protest of the clinton administration state department said religion would interfere with the work we need to do with the diplomatic work we need to do in the world.

.. and now i am not so sure. that is what i would like to use the last part of my talk to discuss. in the top down sense there are people in this room who know more about obama's religion than i do but i think we all agree obama is the man of faith but it is more ambivalent more intellectual, more complex and more searching. i would not say he is a man of

certainty in any sense although he has certain certainties but he is a curious individual and that applies to his religion as much as it does anything else. to me he seems more akin to someone like jimmy carter than george w. bush or even bill clinton for that matter or hillary clinton. none the less religion featured prominently in his foreign policy. in his first term in his first two years, most obviously in a the cairo speech in june of 2009 which most foreign policy experts agree is the most important speech most important initiative that obama had in foreign policy terms for his entire presidency going up to the present. in a cairo speech he outlined a faith based version of democratic peace theory. a more democracies there are, the more chance there is for peace because democracies are inherently peaceful and don't go

to war with one another. the last part is more or less right. don't know about the first part that democracies are more inherently peaceful given what has happened in the last dozen years or so. it struck me as sort of echoes of fdr and the new deal that there were certain echoes of fdr in obama's cairo speech. in with an iteration of franklin roosevelt that state of the union address on a world crisis in which he says religious freedom is a function of democracy which is the foundation of international peace or what he called international goodwill. obama channeling fdr said religion was the foundation of the democratic peace because religious society such as the united states or those in the middle east, tolerance and pluralism necessary for democracy and turn to peace both domestic and international. there are other instances of

religion in obama's foreign policy mostly from his first two years. the most famous example i don't have time to go into is his nobel peace prize acceptance speech in oslo which a lot of commentators nicknamed the good neighbor policy. because of his intellectual debt and spiritual death, but as time went on, the religious presence in american foreign policy began to fade and i would say all but disappeared and the ambivalence of the oslo speech i would say is indicative of his overall ambivalence certainly when it came to the application of religious principles to american foreign policy. it is in the oslo speech, nicknamed the good neighbor policy because he used christian realism as a way of justifying the waging of the war on terror. he says people like martin luther king and gandhi wouldn't have had an answer to hitler or osama bin laden and sometimes we

have to wage war in order to pursue a higher, greater justice. now, however, the role of u.s. foreign policy is limited to islam is the familiar mantra, islam is a religion of peace not terror, something obama has repeated in various guyss quite a few times since he became president including very recently but it was a formula devised by george w. bush in the wake of 9/11. after hillary clinton's departure she gave a lot of encouragement to the notion of international freedom and how the state department would pursue international, religious freedom internationally. after hillary clinton left it is hard to think of another high-level national security official in the obama administration who has deployed religion. bottom up aspect of religion in u.s. foreign policy is also changing, exchanging in ways

that other people who are presented and going to present are discussing and analyzing in ways much more much deeper and more profoundly than i am but some of the obvious ways in which this pressure is changing things to demographic change the rise of secularism, greater religious diversity although after listening to kevin's a crime less certain about the greater religious diversity and all of this furiously typing notes to fix what i was saying based on what kevin was saying about the myth of contemporary american religious diversity but the appearance or acceptance of this diversity has certainly changed how religion is used in a political sense and obviously that applies to foreign policy. not only does this removed a great deal of pressure from below but make it unprofitable for building consensus for their policies and that is how most

presidents have viewed religion in american foreign policy. it is not too controversial, too divisive to be of use beyond platitudes and pluralism and tolerance. east beacon sensual but as i said it is divisive now. this is also the case international where american power is ebbing relative to that of other nations states that and not christian or judeo-christian or islam or even religious in any meaningful sense. if all this is changing and if the change is structural and enduring rather than related to obama in particular, i would argue it will change the terms of america's ideological engagement with the rest of the world thanks. the [applause] >> we have some time for questions but before that i would like to have another round of applause for all these

intriguing panels. [applause] >> there are people with microphones i believe, raise your hand. >> will it change to what? following up the more specific question, what you are saying is the use of explicit symbols and tests from religion is being diminished, in the second half of the obama administration, what is it replaced by? is it scheerer privatism? what then comes in its place and can we not always see those

things as religious in a way? >> great question. what is it going to change? i don't know. i am a historian, not good at predicting what is happening in the future. i proved that in forecasting already. i will probably prove it again. with this chapter in this book. i don't mean to be glib. the last part of your question is what i would answer with. is going to be replaced not with your pragmatism because i don't think that is possible in a democracy. you can have a foreign policy without justifying it to be beginning very imperfect democracies, you have to be able to explain it and justify it and what might happen in the american context business overtly christian, judeo-christian or religious or whatever we want to call it influence is going to be

replaced by a moralism as you hinted at the end of your question, may not be cut in over the religious terms and i can think of the foreign policy of the country where i live, great britain, as moralistic because of foreign policy, and in some cases certainly libya in 2010, at first syria last year is more moralistic, not in religious terms available at all. in this work of obvious keyword since that in a deeper meaning it might. that moralism will continue to have religious and this even if it is not explicitly couched as religion or christian or whatever. i think i will end their.

>> also for kevin comment andrew, speaking about your comment. >> probably a better answer than i do. >> i am wondering among 20th century presidents, can you think of someone for whom religion could not be translated 100% into morality, and an additional transcendent notion beyond morality, and that from the bottom up. >> i thought you were going -- i thought you were asking if i could think of 20th century u.s. presidents for whom religion wasn't the source for their

foreign policy in moral terms or pragmatic terms, quite a few. it was not a source of morality, and imponderables the no historian or scholars able to answer with any kind of fidelity. and give firm definition to it. from the top down the first person i thought of was jfk. again religion was absolutely not part of the kennedy administration foreign-policy the kennedy administration explicitly tried to sideline foreign policy when it created something like the peace corps you already got a large peace corps that has been operating for a century called missionaries, the kennedy administration's that we have little to do with missionaries or faith based in geos like

catholic relief services. this is the government on ending will be secular and we won't be promoted or dealing with american religion even if we have to deal with foreign religions in places like africa but your question is not that. it is how it informed his or any other president's sense of morality. >> i'm wondering if there's any religion operative eatery number 1 or number 2 that is not itself collapsible into morality or moralism. >> it is a great question, a difficult one. you are talking an abstraction that is difficult to think of in terms of foreign policy. i would say i can't. >> i have a question for alison collis greene. i thought was a fascinating discussion about when things were bad and the social safety

net arrived and the things were better and now we are in 2014 and going back to the arguments from the 20s and i want you to tell me how this happened. simple question. >> the paper made me go to the present which i don't do a lot of. i stopped in the 40s but part of the explanation, in the blending of church and state that happened beginning in 1950s the reference to briefly the way in which religious organizations became administers, administrators of state aid and in that sense developed this confidence that they could do this and could regain the moral authority they thought they lost in the new deal and in the process kind of for got they had done it as they had done before.

sort of won both contests there. >> i have a question for mark. since andrew wimped out and wouldn't put on his prognosticator cap i would like you to. tell us what you think the impact of changing demographics will have over time, we heard so much about and the run-up to this election and after the last election didn't necessarily seem to play out in terms of shifting the political map from red to blue to purple, how is that going to play out on these issues in texas and southern politics. is there a change in demographics that might change the tone or tenor of the culture war in terms of how religion plays a part in the construction of curriculums? >> on that specific issue, curricular content for education politics i think is going to continue to be very bad in terms

of conflict written for another 20 years. when i see this tension there have been both polls, pluralism success, resistance to pluralism, and we see that tension at the state board level. a strong emphasis on american identity as quintessentially question. we will call it judeo-christian. will continue to be very influential in board of education politics as well as great uncertainty about the other particularly islam. i don't see that going away. and the conservative board being worried about islam, will broaden their understanding,

pluralism success. it is the changing importantly in this regard, ethnic demographics giving rise to this. recognizing it won't be the majority in a few years and until we see that flip we will continue to have a strong reaction against multiculturalism in any form. eventually those demographics will express themselves in who gets elected and that ends up in curriculum but i think the debates continue to be very heated for a while. >> i'd like to thank kathleen and marks for trying to introduce college to this discussion with the texas board of education, thank you very

much. you are actually doing it. you talked about a 99 year look back at standards. is it possible that there wasn't a lot of reference to religious standards, historically because in fact the bible was a textbook in the classroom in that case prior. >> thank you for the kind comment. and it is certainly the case there is an assumed shared protestant christianity that permeates state educational document so if we are going to refer to religion in the document we are going to refer to the church. so we don't get inclusive in that regard until the past two decades so that was going on. in texas at least, state

documents, although the bible was read a few verses every day and many texas classrooms it was never universal practice in the 20th century and although there were definitely bible courses beginning in the 19 teams, to my great surprise bible course is never took off in texas. the bible was not as much on a classroom presence for a regular material here as it might have been in some states at least in the 20th century. as i guess my have thought of that. there was not that much religion emphasized. america was assumed to be a christian nation, yes, but we didn't have moses as the first american, we didn't have specific historical claims about how we got to this point, a direct line from the ten

commandments to the mayflower compact etc.. at least not in the state documents. it highlights how important those issues are to certain constituencies right now. we are at the peak in treatment of religion social studies documents which is not the same thing as classrooms. >> a question for jennifer too pushing your nineteenth century historians and to the 21st century, it was fascinating, a patronizing attitude towards women and children and ethnicities invoked so frequently, and i wonder if having female secretaries of state made any difference whatsoever. >> i have to look very closely at hillary clinton's record because i don't know as much.

laura bush actually made a lot of claims about women. dirksen senate office building easier to find material but didn't look so much about hillary clinton. my guess would be from her wire work she might have pushed education, the issue of education in a way that might actually parallel what some women in afghanistan are calling for. this to me was one of the most interesting parts of this research, many things that were assumed about what muslim women would want it often had to do with notions of beauty and location where as many advocates out of afghanistan for women and girls talk about education and i would not be surprised if hillary clinton was a little more in line with things that afghani women say they want which is for their girls to go to school but i would have to confirm that.

i don't think -- my guess would be hillary clinton would not talk about nail polish. >> this doesn't answer the question but off the top of my head thinking three female secretaries of state, madeleine albright, condoleezza rice have all three been unusually religious when it comes to secretaries of state? usually not particularly religious accepting people like john foster dulles. i am not sure how that is done but it occurred to me right now that three of them have been much more open than you would normally get from the nation's top diplomat. >> thanks for a great panel. my question is for alison collis greene. it is just sort of a nerdy film in the blank history question. you made a comment about how

when social services, religious institutions can no longer afford to pay for social services and the federal government comes over and you talked about some of the changing dynamics that happen within churches like lower class people don't need to go to the middle class church because they don't need them for basic human sustenance. i was wondering if you could talk about what happens to the churches once they are no longer seen as providers of material sucker and in context of the great religious depression geographically. >> let me start -- the great religious depression was a great religious concern at this particular moment and much more concern than the reality that i can find at all. but what happens to the church depends on the church. a lot of churches found ways to

work around the new deal there was plenty for them to do and the institutions they had built and maintained for so long still stood and most of them -- so a lot of churches, those whose clergy and members were happy to embrace the new deal and who felt in part they could take credit for it they kept it at work. and did so happily and also took credit for the expansion of the new deal. on the flip side the churches that had worked to begin with it and wanted to be done anyway. became critics of the new deal. that became their thing. and so there are not that many

in the deep south. different things start to emerge in the late 30s, that becomes their thing, evangelical critics of the new deal, this expansion of services has in fact taken away the authority that they had to take care of people. in reality the people who went, changed very. and wanted them to go to church but maybe not theirs. but those, so the very wealthiest churches tended to be in the opponent's category and they were very divided, middle-class churches were more in favor of the new deal. >> we should probably end this session. thank you for your questions and

contributions. [applause] [inaudible conversations] >> i didn't know how far. [inaudible conversations] >> all this week we have been showing on corporate and

patience of q&a. later we will wrap things up with a conversation we had with new york times columnist david brooks. you can watch that starting at 7:00 eastern on c-span2. tonight on booktv prime time we will show you some of our recent in depth programs, focusing on arthur brooks, those programs get underway at 8:00 eastern on c-span2. on our companion network c-span tonight a:00 bill clinton moderated discussion with a panel of young entrepreneurs in the health care industry including venture capitalist who started his own health insurance company and stanford university dropout who started a blood testing company. here is a brief look. >> what do you need to happen that is beyond your control for your business model to have a good chance to succeed? >> great question.

i think it is mostly about line incentives. there are a lot of things that are very differentiated and just to go back to the question you asked before, how does technology impact our businesses or the industry. not a technology company in the next decade in won't be a company thinking this is just an unprecedented change in the world where everyone either needs to adapt or move gone. but there is so much we can do. amazon and google know when a woman is pregnant almost immediately she is searching for but health insurance company doesn't know until the claim is paid three months after birth.

and [laughter] so to understand what is happening in real time enables us to take something that israel, we can't prevent by giving away free medicine. someone is sick they are going to be sick, we can understand what is happening and point them in the right direction. >> that was part of the annual clinton foundation health summit. see all of that program tonight at 8:00 eastern on c-span. now from november panel of law school professors looks at the limit and future of anti-discrimination laws. this is part of a boston university law school conference analyzing the 1964 civil rights act at 50. topics include racial justice failures, affirmative-action special education law, religious freedom and employment discrimination. this is from last november. it runs just over 90 minutes.

>> so happy to be the moderator of the final panel of this fascinating conference on this of rights act of 1964, past, present and future. so linda mclean has done a wonderful job putting this conference together. the title of this final panel is the limits and future of anti-discrimination law. i will introduce our wonderful panelists in the order in which they will speak and have to admit or excite you with the knowledge we have a surprise speaker and because of the addition of a surprise because we will bill a little later than the 12:15 time that we and they shall be indicated in the program. it might take until 12:30 so we have time for q&a. to my right is ruth colker,

distinguished univ. prof. and memorial chair in constitutional law at the ohio state university. to my immediate right is associate professor at dartmouth college and then james fleming, distinguished fellow in law, associate dream for intellectual life and professor of law here at the university school of law. to my far left is vicki schultz ford foundation professor of law. i will be bringing up the rear with my comments. i am khiara bridges, associate professor of law. without any further ado, please, ruth colker. >> thank you for staying for

saturday morning. i am really impressed with people's vitality. my talk has nothing to do with anything you have heard all weekend. i don't know if that is good or bad, hopefully the. i will talk about the law of special education which has its own statutes, the individuals with disabilities education act. most of the nothing about that, you probably don't know what i am going to talk about. so a couple blocks on the subject you should read, i can't tell you everything about what you need to know to follow my talk but i will do my best but i want to talk about what i call bad mothers which is sort of blaming the mother when things are not going right in the educational system and in some ways this talk is the second chapter in the talk we heard yesterday about pregnancy so not only do we devalue women when pregnant in society but we devalue them after they give birth. a lot of people say that the right is pro-life and this is

what happens after these children are actually born. on special education the way the law works is every child with a disability, disability is defined differently than it is under the a the a. everyone is intitled to a free and appropriate public education. you might say all kids--but only if you make the definition of disability or statutory guarantee on the federal level you should get that. the way it is supposed to work is within each school there should be meetings, individual educational program meetings with teachers, staff and the apparent and experts in special education meeting collaboratively, implementing the plan and everything should be perfect. that is what is supposed to happen in theory. of the team is not able to make a decision then the parent can file a due process complaint using state administrative procedure, each state has its

own administrative procedure. they have to exhaust state administrative procedure before they can file a claim in federal court. most parents if they file a complaint will only do so through state administrative process. there are few complaints in federal court. those decisions that are rendered at the state administrative level are relatively invisible. you cannot find them, the student who has to do the checking on my piece has to learn other ways to do legal research so they're very hidden very difficult to find. i had to a freedom of information request for new york which is one of the largest jurisdictions to get them. i have a file in my computer with 1400 decisions i have not yet read. that is the way you do this work, you have to be in the trenches and that is why i love it. what i did this past summer let me give you how i got into this

project. i have a son in special education and i have been dealing with special education since he was 3 years old and now he is 17. i had to sue my school district when he was in fifth grade to get free appropriate public education and he flourished since i was successful in the due process complaints. in handling the due process complaint and living as a child with a disability, i really felt put upon. i really felt the school district did not respect me with full and equal participation in this process and i felt there was a problem i was always the culprit rather than a facilitator to reach the right answer which is why i had to pursue them and you understood they were badly treating my son and i prevailed and he flourished so to speak as much as any teenager flourishes. in doing this work i began to volunteer routinely to help other parents at the way people find me is the e-mail me, i never charged a penny for my

services. i only represent low-income parents and i never represented a father. is always mothers who find the. typically what happens is i get a phone call. these days more likely any mail but i prefer phone calls. by the end of the phone call the mother is in tears telling these awful things that have happened to her, truancy charges against her, her son is having trouble in school and the ugly things they said to her and the way she feels disrespected or she herself has a disability and i hear this long story and it is just awful and i am practically crying that that won't held that my end of the phone. what i go to a meeting, i go to the meeting and everyone plays nice, they smile, as they say what a wonderful person she is and how wonderful person is and how wonderful to help him and it is wonderful and helpful and maybe the child progresses academically depending how late in the pipeline i got involved and is she crazy? did she lie to me? could these things have really happened? we all know she was telling the

truth. why would she have done that unless the was the truth. i decided there was this problem of women being viewed as bad mothers and being blamed and mistreated and denigrated during this process and i and cover these stories so i hired a team of seven students and charged them with reading as many special education as they could within the jurisdiction. and to come up with cases of bad mothers and that is what i would publish at the symposium so this is my bad mother symposium. before doing that i posted a literature review to see if other people talk about bad mothers and what i found was there is a literature in the field of education that document some of this not through the due process system or hearing officers the way i could because they were not legal tools, but there is such a literature so i thought i would start by reading a couple of items i found in the general literature and get to

specifically what i found. so this first story is one you might have been able to anticipate. a woman is pregnant she knows because their child is going to be born with down syndrome so she talked-about how after her child is born and is welcomed into her household, she is told by the system is her fault her son is retarded, the word we try to nut not use any more in her fault for not having boarded a child society is put upon by having this child in our society. you probably have heard of those crimes of statement. there's also some good investigation about women who are latino or african-american and the experience they have had been raising children with his abilities. one mother in the literature i reviewed talked about how the school blamed her for allowing her son to be in gains, that is why he is having trouble, he wasn't in games, they just assumed that because of his ethnic background.

other women talk about you can't beat too aggressive or assertive on behalf of your child because then your the uppity uncooperative parent. i have been victim of that myself. so you are blamed if your too uncooperative but other literature again often involving latina mothers are blamed for being too passive. they might have documents sent home, and the school district blames them for being uninterested parents when in fact the problem was they couldn't understand the documents being sent home. that is some of the things i found in literature before i began doing my investigation. in my investigation i found four different themes that i explored and be forgiving you some examples to further those themes let me say that the rate of the parent prevailing on behalf of your child is exceedingly low in these cases still in three jurisdictions i investigated, the parent's only prevailed on

behalf of fairchild around 12% or 15% of the time so that assault is an unfortunate factor. there are some jurisdictions and massachusetts is one of them where there's more success for -- i applaud messages for special-education system. that is based on the exception rather than the rule. i live on this terrible jurisdictions, male practice on behalf of the child. i didn't know that on behalf of my child could have been more terrified at the process. when i tell you these stories remember, parents and their children always lose. the first example i wanted to bring to your attention is one that respects hearing office is in school districts, often disrespected the mother's don't disability status, so in one case i was reading of the mother informs the school district, the auto terry processing this

automated difficult for her to hear verbal communication that was rendered quickly during a meeting, in advance of the meeting a reasonable request, a request i make not because of monetary processing because it is hard to read and listen at the same time. the hearing officer in pennsylvania goes at length to say i don't believe this mother is disabled, where is your proof, it is completely opposite of what the ada says approve would require disability, there is no requirement in this the parents ever prove they are disabled. it was just a request she was making and ironically at the end of the decision the hearing officer says this mother seemed dishonest and hostile. that won't get any credit to what she had to say and so the two level problem for the mother, at the school district level not getting the assistance she needs to follow things and at the hearing officer level happens again. there was another case which is shocking, from california in

which parents never win on behalf of their children. had the pleasure of going to los angeles several times to talk about this. in this case special education director send an e-mail to the mother which is intended for another school employee referred to the mother, to bring xanax to the next meeting. that was misspelled. it was something else. one of these drugs a woman takes reduce anxiety. fortunately the hearing officer in this case, with this e-mail from the school district they should never have let her see did actually hold on behalf of the child described the mother is restrained and gracious but that is just because it is on the e-mail or she would be in the same category as these other mothers who were too uppity. my second theme is the school district blames the mother's

assertiveness for educational problems that might occur. so here is another case from pennsylvania. in this case the special education director unilaterally imposed the rules that the mother could not speak to any member of the i e p team except the director. i bet the school would love to impose that on me. the mother learned of this restriction for the first time in and i eat the meeting when it was announced very respectful, spent three e-mails that were unprofessional and treated the mother disrespectfully and that was during the discovery process. one e mail made a joke that concerned the mother that was redacted and another e-mail jokingly suggested thanking the mother for sending an e-mail in violation of the rule. it was not considered sufficiently defensive to redact it. the hearing office was pretty decent so the hearing officer found in favor of the mother but

doesn't favor the child? the hearing officer describes the mother as a handful and overreacting. i am like really? she didn't slugger anyone which she should have done. in part blamed the mother for problems that exist and doesn't give a full compensatory damage the child should have received and in fact that is one of the problems in a lot of cases, even when the parent prevails on behalf of the child may be the child didn't have adequate education for four months. the hearing officer will award four hours of compensatory education, just a pivotal -- pitiful remedy when a remedy is issued. another case in california where parents never prevail on behalf of their child involving a fragile child and the mother was concerned that one particular person, because of the very severe problems that could occur that this child could die

without adequate medical treatment. and loses. why should a parent being tightened to make sure their childless a? that is beyond the scope of the statute so the hearing officer ruling on behalf of the school district says it was fought mother, not the district's accounting which impeded the provision of special education services by insisting the child have someone working with him who was a. the third thing the school district blamed the mother for being too passive, there was a case from maryland rep parents never went on behalf of their children, the child attempted suicide, and serious acts of violence, the mother had a terrible time with the due process system, can't imagine what it was like at home. a challenging situation so the hearing officer concludes the behavior at home escalated and can't blame the school district

for the fact the behavior at home was escalating what the mother was trying to wind way through the system. a fourth scene i found at the school district places unrealistic expectations on the mother. there was a case from d.c. where parents do often prevail, one of the best jurisdictions to sue in and this was a case where the mother doesn't prevail because the children did better when the mother took a three month leave of absence, i am sure was an unpaid leave of absence. the child did better than so the hearing officer is like why don't you just keep saying home? is not the school district's problems that you went back to work to raise a family. this is very depressing and i have nothing good to say about it. what does this mean? what can we do about it? there are things we could do. we could certainly make sure mothers never go to these meetings alone and to those of you who are law students you need to adopt one child in the boston area wherever you are going to bothell, those of you

who are lawyers i will give you whatever you need to do this but mothers should not be going to these meetings alone. i never went to these meetings alone. it is exceedingly difficult. that is my big suggestion i always make. matters need more support, we need to include going to meetings and getting paid when you are at these meetings, we need to support mothers in our society generally but we should realize mothers are not to blame for children's adverse education results in the school system, that the school system is responsible for educating our children and they are not doing it for much of anybody but especially with children with disabilities, thank you. [applause] >> okay.

so i also want to thank linda for putting together a great conference and for working out the logistics. i want to thank khiara bridges in advance for the discussion on this panel. this project, what i am going to talk about today is the large project i am working on on the scope of rights and by the scope of rights i mean in what ways do constitutional rights apply to non state actors? to private individuals and organizations, so that is the largest, the larger project here and it is a comparative constitutional project. so i will bring in another constitution for this symposium and that is the south african constitution. it really helps by bringing in another constitution we can reflect on either the strength weaknesses of the american

constitution. some preliminaries. i am going to focus on the hosanna case that may not have been mentioned yet but we have talked about religious exemptions. in that case and i will talk a little more about it later on the court unanimously held that a religious employer could violate federal law, in this case the american disabilities act and they did so affirming the ministerial exception, the employee was considered a minister of the religious employer and as a result the religious employer could violate federal law. extant criticisms of this case focus on the fact that this case is inconsistent with cases like employment of smith which was a case that this case is problematic because it treats religion special land allows

religion to gain exemptions from facially neutral laws so there is a good amount of criticism about that case on those grounds. i won't focus on that criticism. that is of more general criticism of this case. my particular focus here is on the tension between the right to religious autonomy and nondiscrimination in employment which is one of the central features of title vii of the civil rights act. so i actually think that tension, and in particular i am going to focus on talking about it, looking at comparative constitutionalism as a difference of higher versus lower lawmaking. what i am going to do is articulate a structural weakness in the way the united states approaches nondiscrimination in employment and this is something a scholarly work has not theorizes and of. weakness or limit of anti-discrimination.

what will my brief outline go in the next few minutes. i will mention quickly a philosophical framework of how we should view this particular attention between religious autonomy and nondiscrimination and employment. then i am going to suggest looking at the constitution of the republic of south africa and contrasting it with the united states constitution, or tell you what i mean which turned out to be crucial. third i will talk about religious autonomy and nondiscrimination and finally i am going to conclude. philosophical framework, equally important rights, i will look, i will draw ten capabilities that are central to a human dignity. you could also use the argument of john wall which is a little more nuanced and requires similar work but i am going to stick with this there's one liberal framework by which we can view tension between a

religious employer and prospect of war current employee. what she suggests with ten capabilities is freedom of religion is one of them. it is part of her imagination and thought category of human dignity but she also suggests that the right to seek employment on an equal basis with others is also part of this capability, part of the control over one's environment. the crucial idea here is that both are central to human dignity but they can conflict. they're both important to dignity but they can conflict. the religious employer discriminates, presumably on religious grounds and as a result of a person, the employee does not have a right to seek employment on any basis with others so that also violates the employee's dignity. is a clash of two equally important rights and it doesn't suggest one is more important than the other.

what does the united states constitution say about this? this should all be familiar to you. think of the first amendment congress shall make no law i talk about the vertical affect. by vertical affect i mean constitutional rights constrained the stage or government. you can look at the fourteenth amendment nor shall any state deny any person equal protection of the law so the principle of equality or nondiscrimination applies to government or state. i think everyone is familiar with it, the idea that there is this notion of vertical affect. this is what may not be familiar. the most sophisticated thing i could do want power point. we had great power point. the south african constitution also adopts in principle a vertical affect, section 15 says anyone has freedom of conscience

religion thought and believed and opinion. it also says when it talks about equal protection, she says the state may not unfairly discriminate directly or indirectly and it lists what we consider suspect classifications so it is a very robust notion pointing down and does less sexual orientation or written constitution to include sexual orientation in constitutional language. is all very familiar but here is the kicker. in section 93 it says no person may unfairly discriminate directly or indirectly against any -- it includes these grounds. this is a horizontal affect. the constitution specifically said constitutional rights constrain private individuals.

the south african constitution, must be enacted to prohibit contract discrimination. we must pass the civil rights act. there are structural framework that intersect with this tension between religious autonomy and nondiscrimination. in the united states the right to religious autonomy is part of the higher law. and talking about employment at the symposium, title 7 and other legislation the ada is prohibiting private employment discrimination. south africa the higher law, the free exercise equivalence section 15. employment is part of the higher

law in south africa. bruce has recently argued that this lower law here should be interpreted as a superstatutes filling a volume iii of we the people. even if that is the case it is hard to make an argument that even the superstatutes will be added as important as the first amendment to the free exercise clause but it is precisely because he is making that argument is because this is of lower law. he is making that argument though he doesn't focus on the case of a clash of rights. we can interpret it as this is because of a structural matter it is not part of the lower law, not higher law. if that is the case then what are the implications of this? in the united states the implication one, is democratic majorities may decide to exempt

religious employers and that is exactly what sections 702 of south this does. it contains an explicit exception will only for religious institutions that discriminate on the basis of religion. in a case in 1987 which was the corporate case coming out of the mormon church, a gymnasium owned by the mormon church. there was this guy who was that janitor they end ed up firing him because he wasn't mormon. he argued this exemption violated the establishment clause. the court disagreed and said yes, congress could exempt religious employers so they could fire a janitor for not being a moment and it was clear the janitor obviously was in no way part of the religious staff or even part of the church. another case out of iowa there

was a nurse in a catholic don't hospital was within. was fired. the court said the exemption was constitutional. and of course in the hose on the case the facts weren't this. cheryl parrish was a teacher at a lutheran church, she was considered a call teacher because she bore the title of minister of religion, turned out to the law work for the court and she had narcolepsy and she was told not to return to the classroom. she said this was a violation of the americans with disabilities act, i will sue under the ada. the church fires her saying you violated church doctrine because church doctrine requires your resolve disputes internally. in a way it put her in a catch-22 lead iraq said she won't return to work or use the law in order to access your rights then you lost it.

the court in that case unanimously held the church could fire her. let -- what the court said basically was if we did not allow the church to fire her we would violate the free exercise clause. a few things that are important the court said there was a functional test to determine if someone is the minister. her duties were primarily secular. she was a teacher, 45 minutes when she did some religious duties but the court said that was enough to make her a minister. justice thomas goes further and said we should just be for to religious employer if they say someone is a minister they are a minister. second keep in mind the employee was told not to return to work because of the collapse in but that's -- there was no religious reason for that. the religious reasons came when she set 9 going to sue under the ada. the question was is this being done on the basis of pretext? the court said we won't get into

that. we won't ask that question. justice roberts cites the magna carta in his opinion about the importance of religious autonomy. the magna carta celebrates its 8 hundredth anniversary next year compared to the 50th anniversary of the civil rights act. there is another case earlier coming out of san francisco where a church dismissed an organist for being openly gay and the court accepted that that was constitutional. in south africa democratic majorities must pass nondiscrimination legislation so it is not so easy to exempt and in south africa courts must treat religious employers and the employee equally. there was no discussion of the constitutional importance of the quality, the right to nondiscrimination, employment is only at lower law, not higher law, it was different in south

africa. .. there is a constitutional imperative of non-discrimination in employment. they actually say the right to equality protected in terms of section nine is viewed as foundational to our constitution order. the court goes on to reason, equality is not really a fundamental right this is core value of the constitution. what i want to suggest going back to nussbaum, the

south african constitution takes seriously the dignity of the employee there constitutional right to the non-discrimination in employment where the united states constitution. free exercise clause all they religious employers can invoke the free exercise clause in the u.s. constitution to protect discriminatory employment practices. employee victims can not equal protection clause to thwart it. prince i'll of non-discrimination is weaker in the united states than south africa, because of lack of -- [inaudible] thank you. -- effect. >> khiara, will you pass these? my constitutional law students, now i have a handout for every occasion. only half of this will show on

the screen, i have a physical handout to capture it all. so, i am finishing a book entitled fidelity to our imperfect constitution. i argue that no approach to constitutional interpretation including originalism or doctrinallism can avoid making normative arguments how best to understand your constitutional commitments, including those to equal protection and order liberty a piece from my book that i'm presenting today relates to the past, present and future of equal protection jurisprudence and there with, antidisc a preliminary remark to relate my paper back to an issue that arose yesterday, actually i think khiara raised this issue in response to linda's paper. it concerned whether discrimination on the basis of sexual orientation is inindividual just as

discrimination on basis of race. in part it is structure of federal equal protection jurisprudence or rigidly articulated tiers that drives people to consider this analogy. i'm going to suggest if we appreciated the wisdom of justice stevens's equal protection jurisprudence there is only one equal protection clause, we could avoid the need to try to shoehorn sexual orientation into the mold of racial discrimination. we would simply make normative judgments about whether discrimination on basis of sexual orientation demeans or humiliates in a way that vie last the sovereigns duty to govern impartially. we see that kind of judgement i think in cases like roemer, lawrence and windsor. okay. so, let me quote justice stevens's famous statement.

there is only one equal protection clause. it requires every state to govern impartially. it does not direct the court to apply one standard of review in some cases and a different standard in other cases. these words open justice stevens's fame must concurring opinion in craig versus boren. this is the first case the court applied intermediate to gender based classification. third tier equal protection analysis between strict scrutiny andrx rational basis scrutiny. craig was decided in 1976 at the begin of justice stevens's long and distinguished tenure on the court. with these words he served notice that he was an independent thinker and that he was to be a justice of standards, not a justice of rules. here was a person not going to claim he could avoid making normative judgments in applying doctrinal frameworks or

enforcingologynal meaning of the constitution. what does justice stevens mean when he says not withstanding all these articulated tiers there is only one equal protection clause? i will interpret his statement as making two important jurisprudence exare sortation. one he is making exhortation to paraphrase chief justice marshall in mccullough versus marylander we must never forget it is constitution, not doctrinal framework we're expound you. put another way stevens is admonishing applying doctrinal complex frameworks the supreme court should not lose sight of it is obligation to make formative judgments about the meaning of our constitutional commitments including those to equality. on this view stevens is worried that the court is forgetting, that the constitution and indulging the lawyerly yen to develop a complex doctrinal framework. okay? worse yet, they may be using

doctrinal frameworks to obfuscate the need for or the fact of normative judgments that can not be reduced to application of bright line rules. okay. now, second and related i think justice stevens is making an exhortation about the form or structure that doctrine should take it. should take the form of standards, not bright line rules or rigid rules. and i note that this is a general feature of his jurisprudence. for example he might just as well have written there is only one first amendment. he has been critical of this tiers of scrutiny in first amendment jurisprudence. or he could have written there is only one due process clause. i have written a paper that gave as a lecture at dartmouth sent invitation making argument to that effect. okay. so when i teach equal protection in constitutional law, i have a pop quiz. i put it on this handout. it is a exercise to test where

equal protection jurisprudence is these days notwithstanding all of the official articulated tiers of analysis. so i asked how many qualpro ex-techs clauses are there? and you see them, multiple choice is on your handout. one, two three four, five, six, all of the above or none of the above. i asked what is the best argument for each answer? then at the end i ask was justice stevens right after all? let's quickly go through the exercise. what is the best argument that the answer is one? with h well that is justice stevens's arguement made originally in craig and elaborated in claiborne. what is his argument? his argument as i interpreted it is that the court can not avoid making normative judgments about practices demean or humiliate or reduce people to the status of interior race or caste in violation of the sovereign's

duty to govern impartially. in claiborne he elaborated. in fact our cases have not delineated three or even one or two such well-defined standards. the cases reflect continuum of judgmental responses to differing classifications explained in opinions by terms ranging from strict scrutiny at one extreme to rational basis at the other. what is the best argument for two? well that was the best answer before craig. in fact was the answer given by the supreme court in cases like dandridge versus williams and san antonio versus rodriguez. what were the two tees of standard? familiar strict scrutiny of suspect classification or fundamental right or differential scrutiny when there was no such classification in play. we should remember that it was the court's decisions in dandridge and rodriguez articulating two tiers that prompted justice marshall to dissent against rigid two

two-tier analysis and offer alternative of spectrum of standards or sliding case with societal portions of adverse interest affected and invidious upon which the particular classification is drawn. what is the best argument for three? that is the best answer as of craig. in fact the answer given by the supreme court in craig. what is the third standard? well intermediate scrutiny for gender based classifications. i won't go through the particular formulations of that tier. i think everyone here would be familiar with them. in mississippi university for women versus hogan the court reaffirmed this formulation for gender based classifications but also used a formulation exceedingly persuasive justification. what is the best argument for four? well, that is the best answer as of claiborne. and here we see, on the left side here the three officially articulated tiers. now we'll move over on to the

right side of this diagram. in, that is the four is the best answer as of claiborne. though that is not the answer officially given by the supreme court there. there the court invalidated a zoning ordinances applied to group home for mentally retarded persons. what is the unofficial fourth standard or tier? rational basis scrutiny with bite as contrasted with differential rational basis scrutiny by williams son. >> what does the bite consist of? more searching inquiry between and and fits between ends and means. first as for end, instead of simply deferring williams's style to asserted governmental objectives is questionably legitimate the court inrequires whether they reflect animus or private biases a bare desire to harm politically unpopular group and thus are not legitimate. okay. and we see similar we see this approach similarly in cases like

tyler versus doe invalidating a law denying he had education to children of illegal aliens. roemer versus evans invalidating state constitutional measures of protect cases of lesbians against discrimination. of course in windsor applying careful consideration to defense ever marriage act an invalidating it. so, the court the courts opinion in claiborne prompted justice stevens to concur and to elaborate his argument there is only one equal protection clause. now, what is the best argument for five? well that's the best answer as of aderan constructors in 1995 though again not the answer officially given by the supreme court there. there the court that held strict scrutiny applies to racial classifications embodied in affirmative action programs. well, what is the unofficial fifth standard or tier? well hither to, strict scrutiny for race based classifications

had been said in professor gerald gunter's famous word, to be strict in theory and fatal in fact. aderan, justice o'connor's opinion for the court officially applies strict scrutiny. but she was at pains to dispel the notion strict scrutiny is strict in theory and fatal in fact. so she says, strict scrutiny is not strict in theory but fatal in fact. she said the unhappy persistence of both practice and lingering effects of racial discrimination against minority groups in this country is an unfortunate reality and government is not disqualified from acting in response to it. thus she behave notice that some affirmative action programs might survive strict scrutiny not to be fatal in fact. so she ratchets it downward slightly. what is the best, oh, justice o'connor's words vindicated, were vindicated in her opinion in broder versus bollinger

upholding university of michigan law school's affirmative action. she sate strict scrutiny is not strict in theory but fatal in fact. all governmental uses of race are subject to strict scrutiny. not all have invalidated by it. her opinion spoke to the law school's educational judgment and deferring to the university's academic decisions formulations that decidedly more differential than the language we typically associate with strict scrutiny. justice o'connor's opinion prompted chief justice rehnquist and associate justices kennedy scalia and thomas to protest that the court abandoned strict scrutiny n whether it comes to affirmative action programs they wanted strict scrutiny indeed to be automatically fatal in fact. arguably in their view the court was squeezing out a less strict form of strict scrutiny lying somewhere between strict scrutiny and intermediate scrutiny. fisher the most recent affirmative action decision is at pains to make clear that even

if scrutiny is not fatal in fact it is not to be feeble in fact. so hey try to toughen it up a bit. what is the best argument for six? well that's the best answer as of united states versus virginia although again it is not the official answer given by the supreme court in that case. there the court held vmi's exclusion of women violated the equal protection clause. what is the unofficial sixth standard or tier. officially justice ginsberg's opinion applies to the same intermediate scrutiny standard to gender based classifications that the court established in craig and affirmed in hogan. but, justice ginsberg picks up on the phrase, exceedingly persuasive justification from justice o'connor's opinion in hogan and although an exceedingly persuasive justification may found slightly stricter than intermediate scrutiny even if not as evict as strict scrutiny. this prompted justice scalia in dissent to object that justice

ginsberg in effect was applying strict scrutiny. well-known as law professor and litigator ginsberg argued for applying strict scrutiny to gender classifications and she almost succeeded in frontero. in u.s. versus virginia she says in a similar vein stiegel argued notwithstanding the failure of equal rights amendment we have a defacto equal rights amendment under this type of scrutiny so, what's the bestorgment for all of the above? -- best argument. i hope i've shown there is argument for each of the above so although my pedogic exercise has failed. what is none of the above? that is same as all of the bo. what does this pedagogic exercise teach us about the equal protection clause and

antidiscrimination law? equal protection jurisprudence is a jumble a mess. two, that justice stevens was right after all, that there is only one equal protection clause with a continuum of judgmental responses likes, that are represented on this table instead of three clearly defined tiers. and indeed that final development since craig and claiborne when he wrote have borne out the wisdom of his argument. well perhaps the lesson is that justice marshall was right after all. that there is a spectrum of standards instead of two or three rigid tiers. again, developments since rodriguez may have shown the wisdom of his conception. so i conclude by stating that both of the, this exercise i believe indicates that both justice stevens and justice marshall were right after all. there is only one equal protection clause with a continuum of judgmental

responses or a spectrum of standards. and, that the court can not avoid making northtive judgments about what practices demean or humiliate or reduce folks to the status of interior race or caste, whether through developing tiers of scrutiny and claiming to apply them automatically to decide cases or through claiming to be discovering and enforcing an original public meaning of the equal protection clause. thank you. [applause] >> trying to get water. okay. i think my talk is probably the most out there in terms of not really caring as much as about

existing law but trying to draw from the shards of it to build something that i think would be better. affirmative action is in trouble. it is legitimacy is deeply threatened. there are deep divisions on the court that mirror divisions among the citizenry who are increasingly skeptical about race conscious actions. the conventional view is that there are two-ways of looking at antidiscrimination law formal versus substantive equality and that the tide has turned politically and culturally, that the formal equality forces are winning. i think that although this explanation has some force it, is only partial. the truth is that in the real world and in our own social science and legal understandings of it things have changed in ways that matter to how we practice and defend affirmative action.

so i'm going to try to do this quickly. historically there have been three different rationales for affirmative action, each of which corresponds to a larger theory of antidiscrimination law which i'm not going to go into today and each of them developed historically in relation to the other so that the perceived shortcomings of one give birth to sort of a new understanding. and, what i will argue today is from the perceived limits of the prior approach, which is the diversity model a a new kind of understanding and rationale for affirmative action is emerging. to preview the argument, earlier rationales for affirmative action treat race and sex-based difference as a characteristic of individuals or groups. that adheres in them is relatively static and exogenous to work places for higher educational institutions for

example. the new approach sees difference as something that is partly illusory partly real. that is constantly created and recreated contextually through institutional processes that actually divide people into different groups and mark some of them as different and out of place to their detriment. okay. there is a lot of social science research that supports this new framework and i won't have time to go through it all but i will telegraph it a little bit later in the talk. okay. so let me see how quickly i can do the three prior approaches which should be familiar to you. the first i call impartiality. most people would refer to it as colorblindness et cetera here i want to draw out a couple of features of it that have been really overlooked into the literature. obviously, and this is a part that is there in the literature,

unless the concept of impartiality is understood very broadly, right to include ridding selection processes of hidden forms of bias, insider favoritism and things like that that have very severe racial and gender effects affirmative action programs will inevitably be viewed as violating a norm of impartiality, by definition they take race or sex into account in a way that flies in the face of a narrow construction of what impartiality means. so for this reason even liberals historically have conceded that to practice race conscious, you know, hiring and so forth is a technical violation of title vii. here i would cite justice brennan's opinion for the majority in uv v. steelworkers versus weber. now what is the point that i want to make that has not been made in the literature? okay. today, we have basically only

two versions of impartiality that are on the horizon that are out there in sort of law land. one is sort of roberts scalia position, that any use of race or taking it into account is by definition tantamount to the old jim crow and simply indefensible. and the second is sort of compromise approach, crafted by justice o'connor and carried forward by moderate wing of the court that grudgingly approves, carefully crafted programs that take race and sex into account but only where there is evidence suggesting existence of present systemic discrimination. i have a whole analysis in the paper of how the constitutional standard of prima facia proof of a title vii violation actually means that you know, state and local governments who practice affirmative action are required to show systemic disparate treatment essentially. that's a pretty narrow construction of the factual basis that's necessary to defend

affirmative action. now, why has the court moved in this direction to be so narrow? here's the key point. contrary to what we think of when we hear a term like impartiality, this approach historically and today assumes that there are static differences between racial and ethnic groups, right, and between es males and females that are exogenous. they have nothing to do with how work places operate. how higher educational institutions operate. they just are out there. they're attributable to nature, right? or to sort of early upbringing, things so deep, deeply embedded within individuals that they're almost impervious to change. and there is lots of evidence that the court links impartiality to this assumption of exogenous difference as i call it. two great examples are justice scalia's dissent in johnson

versus santa clara county where the court upholds the validity of an affirmative action plan for women that takes sex into account in a very weak way, where there were zero women among the skilled trades in santa clara county. and justice scalia dissents that the idea women quote eager to shoulder pick and shovel was absurd. you might think that is scalia in dissent big deal, right? but you move foss forward to krosen some years later get a majority of the court accepting the same reasoning writing off the virtual absence of african-americans and other minorities among construction contractors in richmond as again, this is a quote not necessarily reflecting discrimination but may have reflected past societal discrimination in education and economic opportunities as well as both black and white career and entrepreneurial choice. and o'connor gives the kicker,

blacks may be disproportionately attracted to industries other than construction. so this is a really good example of exogenous difference. blacks are just born or raised with a set of different preferences and they don't include construction. so the key point here is that the increasing judicial turn toward narrow understanding of impartiality is grounded in judicial acceptance of a very controversial set of assumptions, empirical assumptions about the nature of and source of difference. and those two things have gone hand in hand. now, lawyers knew from the beginning that this was going to be a problem the very earliest cases raised these kinds of defenses. so early on lawyers and judges and activists crafted a second theory which i call the perpetuation of past discrimination theory. this will be most familiar to you. it's the mainstream interpretation of disparate impact. the basic idea is that an

institution can not use practices that serve to carry forward in time and space right, the discrimination by another closely-linked institution. so it's a complex theory of causation that the way institutions work can interact and can reproduce discrimination over time. and again steelworkers versus weber gives a really good illustration of that. the court upheld essentially a quota, kaiser aluminum's use of a numerical goals that admitted black trainees into a training program ahead of more senior whites, and articulate ad standard that is much lower than the prima facie proof standard to manifest imbalance standard which allows employers to take into account the fact that historic discrimination in the skilled trades had left blacks in the area literally less

skills. they didn't have the trade skills whites had. so it was okay for kaiser aluminum to address that deficit through a narrowly tailored program training. that sounds good, right? my god, sounds great. what is the criticism of this? the criticism that emerges very shorthand of this really interesting model is that it stigma tieses minorities in a way by focusing on the deficits, cumulative disadvantage that develops over time. and that instead we should be focusing on the criteria by which merit is determined. and so, this gives birth to the most familiar of all concepts of affirmative action to people in the audience which is diversity. i won't have a lot to say about it. bakke still stands i think as a shining example of diversity reasoning but the basic idea is to make sure institutions broaden traditional norms to incorporate and accommodate the

experiences of different groups. now, note here, that this model like its conservative cousin, impartiality, assumes exogenous difference. men and women are different. blacks and whites are different. latinos, asians right? we need all of them because we need the viewpoints that they represent and having everybody in is boeing to enhance the institution. there are other cases like metro broadcasting versus ftc blah, blah, that illustrate this. it was also picked up by feminists in the 1980s to make some feminists, to make arguments for promoting women full inclusion based on i think fairly exogenous assumptions about where the commitment to care on behalf of women comes from. it has nothing to do with the work place. it preexists. and so therefore employers should accommodate it. now all of these models fostered progress initially and certainly

diversity did but there has developed a really serious critique of diversity that i think is a precursor to giving model, giving birth to the new understanding of affirmative action. and quickly the critique is that first of all the acceptance of exogenous differences between groups promotes stereotyping, right? and it obscures differences within the group and also obscures similarities between groups. so if we say you know, women as a group are x right, by definition that statement is fraught with the risk of stereotyping because which women, right? what time period, et cetera? and we are promoting stereotyping and segregation arguably. the other i think deeper and more important criticism is that in describing these groups in terms of average tendencies and at tribbling their

differences -- attributing their differences to places outside the institution being examined we are letting the institutions being examined off the hook right? so it is easy to say in the context of higher ed, well the university didn't discriminate, right? they're not responsible for the fact that some groups may come to the table with qualifications that look less, lesser than others. but in fact you know the perspective from the new point of view is that if we were to dig deeper, we might find all sorts of ways in which the hallways and the classrooms, the way professors interrelate to students, the way groups interrelate with each other universities do create deep racial divisions and sex-based divisions among their student body and those things have feedback affect loops throughout society. . .