than we initially indicated in the program. to my right is a distinguished university professor and the memorial chair and constitutional law at ohio state university. to my immediate right is the associate professor of government. to my immediate left is our surprise guest. the honorable fellow, the associate dean for intellectual rights. to my far left is vickie scholz, the foundational professor of law at yale. i will be bringing up the rear with my comments. i am an associate professor of law and anthropology here. without any further rado

professor? >> thank you, linda. i have impressed with people's vitality. my talk will have nothing to do with anything you've heard all weekend. i am going to talk about the special education which has its own statute. most of you know almost nothing about it. without predicate i will say a couple walks that you should read -- i can tell you everything but i will do my best. what i want to talk about today is what i call dead mothers which is blaming the mother when things aren't going right in the educational system. in some ways this talk is the second chapter in the talk we heard yesterday about pregnancy.

not only do we devalue women when they are pregnant, we devalue them after they give birth. a lot of people say the right is pro-life until birth. this is what happens after these children are born. to give you three seconds on this law, the way it works is that every child with a disability is entitled to a free and appropriate public education. you might say all kids should get that -- they should. the way it is supposed to work is that within a school there should be meetings that are called individual educational program meetings, with teachers staff, and parents, and experts. they should be working collaboratively to implement the plan. that is what is supposed to happen.

if that team isn't able to reach a decision, the parents can file a due process complaint using an administrative procedure. if they have to exhaust that administrative procedure, they could file a claim in court. most parents if they file a complaint will only do so through an administrative process. there are very few complaints heard in court. those decisions that are rendered at the state level are relatively invisible. you cannot find them, which means the student who has to do the checking on my piece will have to learn other ways to do legal research. they are very hidden and difficult to find. i had to do a freedom of information request for new york. i have a file at my computer with 1400 decisions that i have not yet read.

that is the way you have to do this kind of work. what i did this past summer -- let me give you how i got into this project. i have a son who has been in special education and i have been dealing with the system since he was three. i unfortunately had to sue my school district when he was in fifth grade to get him public education. he has flourished since i was successful. but in handling that due process complaint and living as a parent of a child with a disability, i felt put upon. i felt the school district did not respect me in this process. i felt there was a problem that always had me as the culprit. that is unfortunately why i had to sue them before they understood they were badly treating my son.

in doing this work, i began to volunteer routinely to help other parents. the way people find me is that e-mail me, call me. i have never charged a penny for my services. typically what happens is i get a phone call. these days it is more likely an e-mail. i get a phone call and by the end of the mother is in tears telling me these awful things that have happened to her, the truancy charges against her when her son is having trouble. the ugly things they have said to her and how she feels disrespected. the here this long story and it is just awful. i am practically crying but i know that won't tell that my and. i agreed to go with her to a meeting. everyone plays nice, they smile and they say what a wonderful person she is and how wonderful her son is, and all of a sudden it is wonderful and helpful and

the child progresses depending on how late in the process i got involved. i am like, is she crazy? of course, she was telling the truth. why would she have done it? i decided there is this problem of women being viewed as bad mothers and being blamed and mistreated and denigrated. i would like to uncover these stories. i hired a team of students this summer and charged them with reading as many special education decisions as they could within a jurisdiction, to come up with cases of bad mothers. that is what i would publish. before doing that, i reviewed literature to see if other people talked about them. what i found is that there is literature in the field of education that documents some of it. through the due process system.

there is such literature, so i thought i would start by reading a couple of items i found in the general literature and to get to specifically what i found. this first story is one you might be able to anticipate. the woman is pregnant, she knows her child will be born with down syndrome. she talks about how after her child is born, she is told by the system that is her fault her son is "retarded," the r-word. i am sure you have heard of this kind of statement. there is also some really good investigation of women who are latino or african-american, the kind of experiences they've had raising children with disabilities. one mother talks about how the

school blamed her for allowing her son to be in gangs. of course, he wasn't in gangs but they assumed he was. other women talk about how you can't be too aggressive, because then you are the uppity anton cooperative parent. you are blamed if you are too uncooperative, but other literature often involving latina mothers blamed for being too passive. they have trouble following and the school district blames them for being uninterested when the problem was they couldn't understand the documents. that is some of the kind of things i found in the literature doing my investigation. i sort of found for different themes that i explored. before giving you some examples to defer to those themes, let me

say that the rate of the parent -- is exceedingly low in these cases. and three of the jurisdictions i investigated, the parents only prevailed on behalf of their child around 12%-15% of the time. the odds are very slim that these parents -- slim for these parents. massachusetts had a much better statistic, but massachusetts is the exception. i live in one of those terrible jurisdictions. it is virtually not practiced. i didn't know that when i brought my child because i would have been much more terrified. when i tell you the stories, remember -- parents and children always lose. the first example i want to bring to your attention is one that reflects what officers and school districts and how they

disrespect the mother's disability status. in one case i was reading, the mother informed the school district that she had a auditory processing disorder that made it hearing -- that made hearing difficult. she wanted documents in advance a reasonable request. a request i make because it is hard to read and listen. this hearing officer in pennsylvania goes at length to say "i don't believe this mother is disabled," completely opposite what the ada says. there is no requirement that the parents ever prove they are disabled. ironically at the end of the hearing officer says this mother seemed dishonest and hostile. it is a two level problem for the mother.

she is not getting the assistance she needs and the hearing officer did it again. there was another case which is shocking in california, in which parents never win. i had the pleasure of going to los angeles to talk about this. the special education director sent an e-mail to the mother, intended for another school employee, which referred to the mother, urging employees to bring fan x to the net -- to bring xanax to the next meeting. fortunately, the hearing officer did actually hold on behalf of the child and described to mother as restrained and gracious.

but that is just because they found the e-mail, or she would have been in the same category. my second scene is a school district blaming mothers assertiveness or educational problems that might occur. here is another case from pennsylvania. the special education director unilaterally imposed the rule that the mother could speak to any member of the iept team except the director. the mother learned of this restriction for the first time at a meeting when it was announced. the special education director also sent three e-mails that treated her disrespectfully found during the discovery process. one e-mail that concern -- one e-mail made a joke that was redacted. another joke suggested

spanking the mother and it was not redacted. this is pennsylvania. the hearing officer in this case found in favor of the mother. but the hearing officer does describe her as a "handful," that is "overreacting." it is blaming the mother for some of the problems that exist and doesn't give the child full compensatory damages that the child should have received. that is one of the real problems in these cases -- even when the parent prevails, the child didn't have an adequate education for four months, the hearing officer will reward for hours of education. a pitiful remedy. there was another case in

california involving a medically fragile child and the mother was very concerned that one particular person -- that the child could die during the school day without adequate treatment. the hearing officer says it was the mother, not the district which impeded the provision by insisting that the child have someone working with him. the third theme is that the school district blames the mother for being too passive. there was a case from maryland where parents never went on behalf of their children in which the difficulties were so severe that the child attempted suicide. the mother had a terrible time navigating the due process system.

i can't imagine what it is like for her at home. the hearing officer concludes the behavior at home escalated. you can't blame the school district or the behavior at home escalating. a fourth seem i found was that the school district places unrealistic expectations on the mothers. there was a case from d.c. where parents often do prevail one of the best jurisdictions to sue in. this was a case where the mother doesn't prevail because the child did that or when the mother took a three month leave of absence from her job. and unpaid leave of absence. the hearing officer said why don't you just keep staying home? it's not our fault he went back to work. this is all very depressing and i don't have much good to say about it. [laughter] so what does this mean? there are some things we can do.

we could certainly make sure others never go to this meeting alone, and each law student could adopt a child in the boston area. i will give you whatever you need to learn how to do this. mothers should not be going into these meetings alone. i never went to these meetings alone because it is difficult. that is my big suggestion i always make -- mothers need more support. getting paid while you were at these meetings. we need to support mothers in our society but we should realize that mothers are not to blame for children's adverse educational results in the school system, but the school system is responsible for educating our children. thank you. [applause]

>> ok. i also want to thank linda for putting together a great conference. i also want to thank kiara for being the discussion. this project is a larger project that i'm working on on the scope of rights. by scope of rights i mean in what ways do constitutional rights apply to nonstate actors, private individuals or organizations? that is a larger project here. i am going to bring in another constitution for this symposium the south african constitution.

it helps to bring in another constitution to reflect on the strengths or weaknesses of the american constitution. some preliminaries. i am going to focus on the hose on a case -- josanna case. i will talk a little bit more about it later on. the court unanimously held that a religious employer could violate federal law, the americans with disabilities act with the ministerial exception. the employee who is considered a minister of the religious employer and as a result the religious employer could violate federal law. criticisms of this case focus on the fact that this case is inconsistent with cases like --

the pod case. this case is problematic because it treats religions of and allows them to gain exemptions from neutral laws. i'm not going to focus on that. that is a general criticism. that particular focus here is on the attention between the religious autonomy and on discrimination and employment, which is the central feature of title vii. i think that tension is -- in particular, i'm going to focus on comparative constitutionalism, a distinction between higher and lower lawmaking. and i'm going to articulate a structural weakness in the united states approaches nondiscrimination employment. this is something that scholarly

work has not realized enough. ok. what will my brief outline -- ok. i am going to mention a philosophical framework of how we should view this particular attention between religious autonomy and nondiscrimination. that i'm going to suggest looking at the constitution at the republic of south africa and contrasting it with the united states constitution. i will tell you what i mean by vertical and horizontal effect. than i am going to talk about religious autonomy and nondiscrimination. then i'm going to conclude. a philosophical framework -- two equally important rights. i will draw 10 capabilities that are central to human dignity.

i'm going to stick with this. she articulates one liberal framework by which we can view this tension between a religious employer and a prospective or current employee. she suggests 10 capabilities -- i freedom of religion as one of them. 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 idea here is that both are central to human dignity, but they can conflict. the religious employer discriminates, presumably on

religious grounds, and as a result, the person, the employee, does not have the right to seek employment on an equal basis. it is a clash of two equally important rights. what does the united states constitution say? this will be familiar to you -- the first amendment. i talk about the vertical effect here -- by vertical effect i mean the constitutional rights constrained on government. you can look at the 14th amendment -- the principle of equality and nondiscrimination applies to government or the state. i think everyone is familiar that with this. this is the most sophisticated i could do on powerpoint.

[laughter] the south african constitution also adopts a vertical effect. section 15 says everyone has a freedom to constitution of thought, believe, and opinion. it also says when it talks about equal protection, that rather than equal protection act they say they may not -- it is a very robust notion. the first written constitution to include sexual orientation. seems familiar. but here's the kicker. in section 9.3 it says that no person may unfairly discriminate against anyone on the grounds -- this is a principal horizontal effect. the constitution says that

constitutional rights constrain private individuals a principle of horizontal effect. it is that principle that is not in the united states constitution. the south african constitution says that national legislation must be enacted to prohibit unfair discrimination. nothing in our constitution says we must have a civil rights act. that is the setup. so how does this structural framework intersect with this tension between religious autonomy and nondiscrimination? here's my chart. in the united states, the right to religious autonomy is part of the higher law. the right to nondiscrimination an employment is part of the lower law. south africa, their higher law

is the exercise of free law but nondiscrimination is part of the higher law. i will note that it has been recently argued that this lower law should be interpreted as a supersaturate. even if that is the case, it is hard to make an argument that it could somehow be as important as the first amendment's free exercise clause, but i will mention it is precisely because he is making that argument because this is a lower level. he doesn't focus on this case of a clash of rights, but we can interpret it that it is a structural matter. if that is the case, what are

the implications? in the united states, the implication is that democratic majorities may decide to exempt religious employers. that is exactly what section seven of title vii does. it says that it contains an explicit exception only for religious institutions that discriminate on the basis of religion. the case in 1987 which was coming out of a mormon church -- a gymnasium owned by the mormon church. there was a guy that was a janitor and they fired him because he was a mormon. he argued that this exemption violated the establishment clause and said that congress could exempt religious employers so they can fire a janitor for not being a mormon. it was clear that the janitor

was in no way part of the religious staff or even part of the church. another case out of iowa, there was a nurse and a catholic hospital who was wiccan, and was fired. in the hossananna case, there was a teacher at a lutheran church. what happened was she had narcolepsy. she was told not to return to the classroom. she said this is a violation of the americans with disabilities act. she tells her religious employer and the church fires her saying, you violated church doctrine because church doctrine requires you fixate internally --

and she is in a catch-22. the court in that case unanimously held at the church could fire her. what the court said was that if we did not allow the church to fire her we would violate the free exercise clause. the court said there is a function to determine if someone is a minister. her duties were primarily secular. the court said that is enough to make her a minister. the court says we should defer to the religious employer. keep in mind that a parish was told not to return to work because of narcolepsy that --

there was no religious reason for that. the religious reason came in which he said she was going to sue. the question was is this being done on the basis of pretext? the court said we are not going to get into that. justice roberts cites the magna carta in his opinion about the importance of religious -- the magna carta celebrates its 800 anniversary next year compared to the 50th anniversary of the civil rights act. there is another case coming out of san francisco where a church dismissed an organist for being gay. the court accepted that was constitutional. in south africa, democratic majorities must pass nondiscrimination legislation so it is not easy to exempt. courts must treat rights of religious employers and

employees equally. there was no discussion of the constitutional importance of equality. it was different in south africa. the case in south africa was like the case i told you about out of san francisco -- the gay organist who comes out in the church says we think a sex is a sin. and the church -- not only does he have to be reinstated, the church is fined for violating the constitution. and the court says, in this case, they say the question remains whether that right to religious freedom outweighs the constitutional imperative that there must not be discrimination on the right of sexual discrimination. they say the right to equality is protected is viewed as

foundational to our constitution. it goes on to reason that equality is not merely a fundamental right, it is a core value of the constitution. the south african constitution takes seriously the dignity of the employee and the idea that there is a non-discrimination rights in employment. no match for the first amendment free exercise clause. their employee cannot invoke the equal attention cause to thwart it. principal nondiscrimination is legal in the united states than in south africa. thank you. [applause] >> can you pass these out?

my constitutional law students know i have a handout for every occasion. [laughter] because only half of this will show on the screen, i have a physical handout. i am finishing a book entitled "fidelity to the constitution." i argue that no approach to constitutional interpretation, including a regionalism, and avoid making normative arguments about how best to understand our constitutional commitments including those equal protection and order liberty. a piece from my book that i presented a relates to the past, present, and future of equal protection jurist regions with antidiscrimination law. preliminary remarks to an issue

that arose yesterday. it concerns whether discrimination on the basis of sexual orientation is as invidious as discrimination on the basis of race. in part, it is the structure of pharaoh -- federal equal protection jurisprudence with tears -- tiers that drives people to consider this analogy. if we appreciate that wisdom of justice stevens, there is only one equal protection clause, we can avoid the need to try to shoehorn sexual orientation discrimination into the mold of racial discrimination. we would simply make normative judgments about whether discrimination the basis of sexual orientation demeans or humiliates in a way that violates the sovereign duty to govern impartially.

we see that kind of judgment, i think, in cases like lawrence and windsor. let me quote justice stevens famous statement. there is only one equal protection clause. it requires everything to govern impartially. it does not direct a course by one standard of review in one cases and a different vendor in other cases. these words open justice stevens famous opinion and kuipers is born. this is the first case in which the court applies intermediate scrutiny to gender-based classification. that is the third tier of equal protection analysis. crank was decided in 1976 at the beginning of justice evinces long and distinguished tenure. with these words, he note that

he is an independent thinker and he was to be a justice's standard, not a justice of rules. he was a president who cannot claim he could avoid making normative judgments. order enforcing original meeting of the constitution. what does justice stevens mean when he says, notwithstanding all of these articulated tears there is only one equal protection clause? one, he is making the expectation that to paraphrase chief justice marshall, we must never forget that it is a constitution. not a doctrinal framework. or stevens'admonishing that the framework that the supreme court should not lose sight of its obligation to make normative judgments about the meaning of our constitutional commitment,

including does to equality. on this view, stevens is wearing the court is forgetting that the constitution in indulging the way to develop a complex doctrinal framework. or they may be using frameworks to obfuscate the need for normative judgments that cannot be reduced to application of rules. second, and related justice stevens disney and exit tatian the former structure that doctrines should take. it should not be defined by rigid rules. this is a general feature of jurisprudence. there's is only one first amendment. he has been critical of. already could have written there is only one due process clause. i read -- wrote a paper about

that. when i teach equal protection and constitutional law i have a pop quiz and i put it on this handout. it is a pedagogic exercise to test whether equal protection jurisprudence is these days, notwithstanding the articulated tears of analysis. asked how many equal protection clauses are there? 1, 2, 3, 4, all of the above or none of the above. i ask, what is the best argument for each answer? then i asked if justice stevens was right. let's go through the exercise. what is the best argument that the answer is one? that is justice stevens'argument. his argument, as i interpret it,

is the court cannot avoid making normative judgments about whether practices demean or humility -- humiliate or reduce people of a status of inferior caste, in violation of the sovereign's duty to govern impartially. in fact, cases have not delineated three or even one or two defined standards. rather they recite that continuing of -- continuum of judgment responses. what is the best argument for 2? that was the best answer before craig given by the supreme court. what were the two spheres of standards? familiar strict scrutiny or fundamental right or deferential scrutiny when there

was no such classification in play. we should remember it was a forced decision in dandridge and rodriguez, articulating 2 tiers that prompted justice marshall against rigid to tier analysis. what is the best argument for three? that is the best answer, given by the supreme court in crank. where is the third standard -- intermediate standard for gender-based classifications. i will go through that particular formulations. in mississippi university for women versus hogan, the court reaffirmed this. i also used the formulation

exceedingly persuasive justification. the best argument for 4? that is the best argument in cleburne. i articulated -- now we will move to the right side of the diagram. 4 is the best answer is of labor in, but that is not the official given by the supreme court. what is the unofficial standard? rational basis scrutiny exemplified by williamson. what is -- what does it consist of? a searching inquiry into sit between ends and means. that is simply deferring williamson file to governmental objectives as questionably

legitimate. best are not legitimate. we see this approach similarly in cases like others in validating allies against children with disabilities. or to protect gays and lesbians against discrimination. of course in windsor, a playing careful consideration to the defense of marriage act and in validating it. the court's opinion in cleburne county justice stevens to concur an elaborate his argument that there is only one equal protection clause. what is the best argument for five? 1995, it is not the answer given by the supreme court officially. the court held straight scrutiny

applied to racial classifications and affirmative action programs. the official fifth standard -- strict scrutiny for race-based classifications have been said in to be strict in theory and frail in fact. justice o'connor's opinion, officially applied strict scrutiny. but she was at pains to dispel the notion that strict in theory and fail in fact. she's a strict scrutiny is not strict in theory but frail in fact. she says the unhappy of persistence of the lingering effects of racial discrimination against minority groups is an is no reality and government is not disqualified from your buns to it. -- in response to it. she rested since -- ratchets it

downwards. she indicated that her words were vindicated. she reiterated that strict scrutiny is not strict in theory and frail in fact. she added, although all of her mental subject to scrutiny not all are invalidated by it. justice o'connor's opinion improved upon chief justice rehnquist, and kennedy, scalia, and thomas to protest that the court abandoned strict scrutiny. when it comes to affirmative action, they won its scrutiny to be automatically fatal in fact

arguably, the court was squeezing at -- squeezing out. fisher, the most recent affirmative action decision, is at pains to make clear that even if strict scrutiny is not fatal in fact, it is not to be feeble in fact. they tried to toughen it up a bit. what is the best argument for six? united states versus virginia. the court held that the exclusion of women violated the equal protection clause. what is the unofficial sixth standard? the same intermediate scrutiny standard to gender-based classification that the court established in crank and affirmed in hogan. justice ginsburg picks up on the phrase exceedingly persuasive justification from justice

o'connor's opinion in open. -- hogan. it may sound slightly stricter than intermediate scrutiny. this prompted justice scalia in dissent that they were playing strict scrutiny. in usd virginia, scalia suspects under the guise of a playing intermediate scrutiny. in a similar vein, they understand it is not the failure of the equal rights amendment. so what is the best argument for all of the above? there is an argument for each of the above.

what is the best argument for none of the above? that amounts to the same as all of the above. what does this pedagogic exercise teaches about equal protection clause and the future of antidiscrimination law? here are some searches. that equal protection jurisprudence is a mess. that justice stevens was right after all there is only one equal protection clause with a continuum of judgmental response like represented on the table instead of three clearly defined standards. perhaps the lesson is that justice marshall was right after all, there is this estimate standards instead of two or three rigid tiers. i conclude by stating that both

-- this exercise, i believe indicates that both justice stevens and marshall were right after all. there is only one equal protection clause with a continuum of judgmental responses or spectrum of standards. and that the court cannot avoid making normative judgments about what practices demean or humiliate or reduce people to the status of an inferior race are cast, whether through developing tiers of scrutiny and framing to apply them automatically to decide cases or through claiming to be discovering and enforcing meaning of the equal protection clause. thank you. [applause]

>> ok. i think my topic is probably the most out of their-- there. in terms of not carrying as much of existing laws. affirmative action is in trouble. it is -- its legitimacy is threatened. there are deep divisions in the court that in your divisions among the citizenry you 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. the tide has turned politically and culturally, and 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 , things have changed in ways that matter to how we practice and defend affirmative action. i'm going to try to do this quickly. historically there have in three different rationales for affirmative action. each of which correspond to a larger theory of antidiscrimination law. each of them developed historically in relation to the other. so that the perceived shortcomings of one give birth to a new understanding. what i will argue today is that from the perceived limits of the prior approach, the diversity model, a new kind of understanding and rationale or affirmative action is emerging. to preview the argument, earlier rationales treat race and

sex-based difference as a characteristic of individuals or groups. that is relatively static and exogenous to or -- persons are higher education institutions. the new approach sees difference is something that is partly illusory, partly real, that is constantly created and re-created 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. there is a lot of social science research, but this new framework and i won't have time to go through it all, but i will just telegraph it later. let me see how quickly i can do this. what should be familiar is the first, i call in partiality.

most people would refer to it as color by list -- colorblindness. i will draw a couple of features that have been overlooked in the literature. obviously, this is the part that is there in the literature, unless the concept of impartiality is understood very broadly, to include reading selection processes of hitting forms of bias inside of favoritism that have severe racial and gender affect affirmative action programs will inevitably be viewed as violating impartiality. by definition they take race or sex into account in a way that slides in the face of a narrow construction of what impartiality means. for this reason, even though liberals historically have conceded that to practice race conscious hiring is a technical violation of title vii. here i would cite justice

brennan's opinion. what is the point that i want to make that has not been made? today, we have basically only to persons of impartiality that are on the horizon of their -- in law land. one is the scalia version that any use of race is by definition tantamount to the old jim crow and indefensible. the second is a compromise approach by justice o'connor and carried forward by the moderate wing that grudgingly approved carefully crafted programs that take race or sex into account but only where there is evidence suggesting the existence of present systemic discrimination. i have an analysis in the paper about how the constitutional standard of proof of title vii

violations actually means state and local governments who practice affirmative action are required to show systemic treatment. that is a pretty narrow construction of the factual basis. why has the court moved in this direction to be so narrow? here is the key point. contrary to what we think of when we hear of term like impartiality, this approach is starkly and today, assumes -- historically and today, assumes there are static differences between racial and ethnic groups, and between males and females that are exogenous. nothing to do with how workplaces operate and how higher educational institutions operate. they are just out there, attributable to nature, or early upbringing. things that are deeply embedded within individuals that there --

they are almost impervious to change. there is lots of evidence that the court links impartiality to this assumption of exogenous difference. justice scalia's dissent and johnson versus santa clara county, where the court upholds the validity of affirmative action for women that takes sex into account in a very weak way where there were zero women insert -- in physically or county. today you might think scalia is in dissent, big deal. but fast-forward years later and you 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.

this is a quote. not necessarily reflecting discrimination, but may have reflected past societal discrimination in education and economic opportunities, as well as black-and-white career and entrepreneurial choice here it. blacks may be disparate -- disproportionately attracted to industries other than construction. this is a good example of exogenous difference. blacks are born or raised with a set of different preferences. the key point here is that the increasing judicial turned toward narrow understanding of impartiality is grounded in judicial acceptance of a very controversial set of assumptions about the nature and source of difference. those two things have gone hand-in-hand. lawyers knew from the beginning that this was going to be a problem. the earliest cases raised these defenses.

early on, lawyers and judges and activists crafted a second theory, which i call the perpetuation of past discrimination theories. this is most familiar, the mainstream interpretation of disparate impact. the basic idea is that an institution cannot use practices that serve to carry forward in time and space. discrimination by another closely linked institution. it is a complex theory of causation that the way institutions work can reproduce discrimination over time. steelworkers versus weber is a really good illustration of this. the court upheld a quota of their use of numerical goals that admitted black trainees into a training program ahead of whites and articulated standard

much lower than the proof standard which allows employers to take into account that that historic discrimination in skilled trades has left black scenario literally less skills. they did not have the trade skills. so it was ok for the aluminum company to address the deficit. that all sounds good right? the criticism that emerges is that it stigmatizes minorities by focusing on the deficits. the cumulative disadvantage is that develop over time. instead, we should be focusing on the criteria by which marriage is determined. this gives birth to the most familiar of all concepts of affirmative action. diversity.

i won't have a lot to say about it. i think it is a shining example of diversity reasoning. the basic idea is to make sure institutions rotting traditional norms to incorporate -- brought in traditional norms to incorporate and accommodate experiences of different groups. note that this model like his conservative cousin, assumes exogenous difference. men and women are different. lax and whites are different. we need all of them because we need the viewpoint they represent. having everybody and is going to enhance the institution. it also is picked up by feminists in the 1980's to make arguments for promoting women's inclusion, that were based on fairly exogenous assumptions about where the commitment to

care on behalf of women comes from. it has nothing to do with the workplace. so therefore employers should accommodate it here it all of these models fostered progress initially. certainly diversity days. but there has developed a serious deep -- critique of diversity that is a precursor giving birth to the new understanding of affirmative action. quickly, the critique is that first of all, the acceptance of exogenous differences between groups promote stereotypes. and it obscures differences within the group and also obscures similarities between groups. if we say, women as a group are asked-- x, by definition that statement is fraught with the risk of discrimination. stereotypes.

we are promoting stereotyping and segregation, arguably. the other criticism is that, in describing these groups in terms of average tendencies, and attributing differences to places outside the institution that is being examined, we are letting institutions being examined off the hook. it is easy to say, well the university did not discriminate. they are not responsible for the fact that some may come to the table with qualifications that look less than others. in fact, the perspective from the new point of view is that it we were to dig deeper, we might find all sorts of ways in which in the hallways and classrooms, the way professors relate to students, groups really was each other universities do create deep

racial divisions and sex-based divisions among the student body and that has feedback loops throughout society. in a nutshell, that is the critique. what is the new thing about? the new things these affirmative action as a tool for identifying and interrupting the institutional processes that foster group based difference that harm certain people. there is a lot of bodies in social science that would support this idea. probably the most familiar to most of you would be research on stereotype. which shows the way in which people were actually equally qualified can be put in an environment in which the context will see something within them that actually makes them from less well than they would in

another context. this is been replicated in scores of studies. it applies not just to members of traditionally disadvantaged groups like women on difficult math tests were example. if you tell them nothing, they won't do as well as the men. if you remove the stereotype threat by saying, most of the time women don't do as well as men, but that is not true of this test, this course will equalize. the same with white men playing basketball against black men. etc.. what would it mean to try to disrupt these processes of different creations? i would have to refer to a lot of the social science literature. let me give you a few examples. first of all, the rationale for affirmative action changes it is now no longer a racial

preference given to somebody. either to create a racial spoils system has conservatives think or compensate for past discriminations -- nor is it a way of broadening institutions that everybody's unique point is representative. now the purpose of affirmative action is to allow enough people in to challenge and sensor and rake down the stereotypes -- break down the stereotypes about their group. that is a very different understanding. i can say much more about other cases that would support this, but i won't right now. how would this make a difference? a couple of examples. critical mass. a very amorphous concept. contexts, nobody really knows what it means. the research that was -- would

support such an understanding of affirmative action would give us an answer to that. the answer to how many people have to be admitted, would be enough people to break down the stereotypes. . and inviting people into groups that would occur in institutions. or some group, there will never be enough and that is a big problem. but at least we would start from the vantage point of social science that would give us a definite answer. secondly, we can reframe cases that are very problematic. like the public employment cases where a police department hired a certain number of minority officers. there are really problematic rationales to support that. here the rationale he change away from the notion that somehow just having officers of a certain race will provide a role model and promote more

respect and tweak that officer in the larger community, instead it would be that if you have a month -- enough officers of a particular race, they will change the white officers and begin to see minority officers differently. as a result, they may relate to members of the community differently. the focus is not the community versus minority officers, it is on changing the minds of the whites. one thing i will not have a chance to talk about, is the research on social categorization, which is about the processes through which we please people into groups to begin with. you look at a case like and hopkins -- and hopkins what social categorization emphasizes is that before any of that can occur, we first have to look at hopkins and go female versus

male. that is the process of sorting people into categories. there is research suggesting that this is process of dividing people into groups in a particular context underlay prejudice, stereotyping, stereotype threat, and all of that. there are institutions -- god knows i hate to hold up the marines as a model -- or our institutions that do a good job of creating a large sense of we. so that people may retain a sense that they are black or female or latino, but it is subordinate. therefore, whites and males season differently because they are all marines. -- see them differently because they are all marines. sorry to go over. [applause] >> i would like to add a couple

of comments. i think that would take us back to the beginning. i helped linda by serving on the planning committee for this conference. it feels like ages ago that we started. when i was asked to be on the committee, i actually did not think i was a good for the committee. it is true that i am a scholar of race and racism. and the civil rights act is concerned with race and racism. but for reasons, i never conceptualized the civil rights act as something to celebrate. when i volunteered to speak on this panel, i imagined i would focus my comments on the limits of the law, specifically on the civil rights act as a limited and limiting people legislation. why have i been negative about this?

well, they were responding to the revolutionary demands of revolutionary people in the 19th defense 60 they demanded racial justice. the civil rights act responded to demands. it is reasonable to conclude that the civil rights act was supposed to bring about and produce racial justice they were demanding. if that is what they were supposed to do, then they have failed. while the legislation was designed to address subordination that black folks were forced to endure, black people remained at the bottom of every measure of well-being in this country. i saw at this point in the conference, the statistics would be tried it out already. allow me to remind you just how poorly black people are doing. black women are four times more likely to die during childbirth.

the infant mortality is twice as white babies. black folks have higher rates of hypertension, diabetes, and heart disease than any other racial group. in this country. black people are sick and die earlier than counterparts. this is true even when one controls for class. i will say that again. this is true even when we control for class. this is not a problem of class or black people being poor. this is a problem of black people being black people. those are measures of health. data reveals the poverty rate for white people was 12% between 2007 and 2011. for black people, it was 26%, more than double. one point 5 million people were incarcerated in this country today. 350,000 of them are latinos.

500,000 are white, and 550,000 are black. these figures are more disturbing when you conceptualized them in terms of the composition of the u.s. as a whole. latinos make up 16% of the population and 23% incarcerated. white people make up 63 percent of the country but 33% of incarcerated. black people make up 13% of the u.s., but 37% of the people presently incarcerated. then, there are racial disparities. if you look at the faculty webpages for any loss goal in the country, you will see a striking absence of lack and brown faces. if you look at the highest court in the nation, especially if you think a longitudinal view, an absence of black and brown faces.

out of 112 justices who have ever served, 109 have been white. that means 2.6% of justices have been nonwhite. to print 6% is a small number. -- 2.6% is a small number. unarmed men who had been killed by the last six months. i am and negatives know you when it comes to the civil rights act. it we will bring -- if they were supposed to bring about social justice, they did not do it. but they did bring something. it is undeniable that the country looks different than it did 50 years ago. i wrote the -- rode the train today and i did not have to write the colored section. there are no whites only signs in the lobby. no white and colored water

fountains. explicit demonstrations of racism is not as common as 50 years ago. we had the civil rights act as well as a interpretation of the equal protection clause employers can't refuse to hire me just because i am lack. they can decide to hire me because i'm wearing the hearings, that in the 80's and 90's, black and brown girls would call door and i curse. -- door knockers. they can decide to not hire me because i'm wearing cornrows. they can say no cornrows allow. but they cannot decide to not hire me because i'm black. they can decide because i'm speaking spanish and they had an english only policy. they can't decide not hire me because i'm black.

black people are not subject to the same indignities they were subject to 50 years ago, and that matters. that might be a cause for celebration. but the truth is, while black people and other minorities are not subject to the same indignities they are still subject to some indignities. you have just changed. that may not be the ultimate point. the point is this. some of the architects of the civil rights act said the law would be about racial justice by attacking the most it is the demonstrations of racial exclusion. in the face of the fact that attacking the most explicit demonstrations of racial exclusion does not necessarily bring about racial justice if we are still interested in racial justice, we have to figure out what else needs to be attacked. as it turns out the things that need to be attacked are not obvious. another way of saying that

social practices that maintain racial inequality are not as plain and unambiguous as they were in 1964. indeed the practices that maintain inequality are frequently race neutral. i'm not so sure that a statute that prohibits discrimination on the basis of race can get at that. maybe we need something that prohibits inequality on the basis of race. what are these race neutral practices that maintain inequality? it is the refusal to say in, any quality is a social problem. it is how we as a nation understand class-based residence segregation as unapologetic. it is how we distribute educational and employment opportunities. it is how we define marriage. consider hiring illegal academia. law professors come from the same 10 schools.

these 10 schools have historically and currently, been racially exclusionary. to get to the school you have to take a standardized test. these tests have also been racially exclusionary. jobs and fellowships that are the steppingstones for these jobs have always been racially exclusionary. we have to ask ourselves, how do we fix that?] then we have to ask why our schools and standardized testing and johnson fellowships, why is that the stuff of married anyway -- me anywayrit? why not let experience, why not your history and past that can produce a creative argument that can get somebody here on the court. we should also keep in mind that

race is a slippery and shifting thing. critical studies 101 teaches is not biological, it is social. it is pragmatic. when purposes shift, race shifts. something that might not have been a characteristic of race in 1964 may be something in 2014. putting that i live in harlem is a characteristic of race. in 2064, maybe living in harlan will not be a categorization of race. speaking spanish, i think is a characteristic of race. in 2064, that might not be true. more latinos are not eating spanish and more non-latinos are speaking spanish. wearing these cornrows and earrings is currently a marker of race in 2014.

it may not be a marker of race and 2064 if we let bo derek have it. i can go on and on. any antidiscrimination law that is not lit, dynamic, and responsive to the fact that race and techniques of racial exclusion are fluid and dynamic will necessarily be limited here it --. as the cherry on top of my negativity, i'm not exactly sure how do it and dynamic the law can be. perhaps the tendency of the law is to be static. to take herculean efforts, it would perhaps be to make the law not static. perhaps this efforts to make law not static are going to bear fruit when you had a segment of society with power that is set aside with social. when you have a segment of

society with power that sits on the supreme court that does not want the law to change a thing. which makes many laws on the books quite limited. i believe that the civil rights act is quite limited giving social context. but i'm happy that i was able to celebrate it limited successes this weekend. [laughter] with that i will open up for q&a. if you have a question please come down to the microphone. [applause] >> i'm from georgetown law. that was amazing. right on point. i think one thing we can take from your comments, is that maybe we are at a point where we should be really hammering on

extralegal ways to deal with this huge problem. my questions are for suno. i really like comparative work. it is interesting to see what different countries are doing. i think you presented your work in a very descriptive way. thermal -- there wasn't much normative. i'm guessing that normally you like the south african system that he -- better. i think you have interesting materials to do a balanced analysis. some things you might want to think about our the values of federalism, not putting so much power at the federal level having states have a lot of power. also, predictability. when you privilege one value over another, people are on notice about what they can or cannot do. when you place these important values equally you are not certain about how it will come down. that is an important thing to

think about. my question is really about the court's analysis that the south african courts analysis on this ordinance case. i think we can see the harm done on both sides. if we truly believe these values are equal, then we might think about the harms as equal. when you presented the court's rationale, every argument was discrimination is that. bad. i would tell my students, when you do you comparisons, is unpersuasive to argue just that one value is important. is unpersuasive if we think about these values as equally important. i'm wondering how the court compared equally valuable things that we want to forward and why they come to the conclusion that

clamping down on discrimination is better in this scenario than allowing religious freedom? >> i do think it is a limit of the united states, petition. -- constitution. i was suggesting in that particular case, you are right. they came down on the side of the employee. that certainly did not mean to suggest they said always come down on the template. -- employee. that suggested there would be cases where we would come down on the religious employer. if the catholic church the sense they are going to discriminate on basis of sex or sexuality and hiring priests like they would only higher straight guys. in that case, we should, on the side of religious employer. what is interesting in the hosanna case, the person was not

at the position of the minister. and the employee was caught in a catch 22. what i'm suggesting they are two equally important values sometimes one will win and sometimes another. i did not mean to suggest that only non-discrimination cases with. in the united states context it is easy to see why religious autonomy will win. that is what i think is problematic. >> thank you everyone for very engaging presentations. my question is for ruth. i was really surprised when you are talking about due process. i was very surprised by the low -- you said 18%. that is not normally the way i

think about those cases where somebody has the resources to fight about it, they stand a pretty good chance. i was curious as to your views of why that is so low apart from the issue of discrimination against others that you talked about. i think it could be a useful piece of the larger civil gideon movement or education. i think your project could be helpful in that larger sense. the second question i had was you talk about discrimination against moms in these cases. the more i thought about that, my wife runs a clinic. she always represents moms and child. i never hear about that. i was curious if that ever showed up or if mom and dad were together. was there evidence that made a difference in proceedings? >> those are two great questions.

to talk about the success rate we have to realize there are many jurisdictions and only in six of them are there a lot of cases reported on an annual basis. in others, the results are there on on the a lot of usability due process system. you have to be careful on what we conclude. it is hard to know because there is also it's a reason people do not pursue due process. i do think the success rate is shockingly low, and not what people might this -- expect it they read about kids getting multimillion dollar benefits for whatever. you know how the media

exaggerate. the training of the hearing officers is shameful. i have done some training. i have been very distant waited in the lack of professionalism among that group. i think we have a real problem with people have very little training who writes 200 page plus opinions. there is no reasons -- reason to like -- write 200 pages after one week of due process hearings. rampant unprofessionalism in school districts. there is also the stuff there. in terms of fathers, there are not enough present for me to have meaningful statistical outcomes. i have some that when grandmothers were present, it does not get better.

there are a lot of grandmothers,. not just mothers to appear. obviously when parents have attorneys, they do better. but these members -- numbers are aggregate. including the fact that most of these parents are represented by lawyers and. >> i think we have time for one more question. >> i have two questions. for professor batty, i'm wondering if you look at the influence of the human rights framework on the south african institution. this switch from vertical to horizontal relationships between people, that is something i come from. just thinking about how that would affect the way that south african constitution privileges right equally, which i believe is fairly common in human rights framework.

a library of rights that are privileged equally. i think there is literature how you could balance those. if you look at that, and also for professor shultz, you said that expanding the criteria of what values to find an point -- find important is one way we can overcome discrimination, or could be one of the answers to the future of discrimination. i'm wondering what role you think the law can play or should play in that, and i worry it we are thinking about, if we have to convince white people that these things are important or skills of other people with different experiences are equally important. if we are living in a society where people with certain experiences and values have privileged, they have created the institutions that control everyone's life, how is it that

alternative values will ever be able to become part of that? any thoughts? >> i don't talk about human rights in this paper, but i do in other work. outside of the international criminal law actually buy a large human rights are all vertical in nature. states are the moral actors in the human rights universe. i suggest in this other paper that as a result, the way we currently think of human rights discourse is problematic for that reason. it is the case that rights-based regimes are often vertically based. one of the points of this is that that is automatic insofar as to think in a way to constrain individuals. >> i think it is -- i did not

have quite enough time to explain the last theory of affirmative action. i actually would not associated with expanding criteria. that is associated more with the diversity framework. and that critiques of the diversity framework are wedded -- what it is giving birth to. the basic critique of expanding the criteria, the main strategy of diversity advocates is that it may come down to the fact that no matter what criteria you have, no matter how expensive and inclusive they are if people don't have the motive and incentive and goodwill and so forth to try to reach across race, and across sex and bond together, it doesn't matter what the criteria are.

outsiders will be harmed no matter what. the focus of this new approach is not necessarily to ask and the criteria. the ways in which people compete based on those criteria and harm each other and divide each other and experience lack of solidarity. to the question about law -- i would say the law is always involved in institutional life. it is just a question of how it is going to be involved in what incentive it will set up and what the end vision that the law and legal actors have in mind is. i guess what people who are subscribing to the new. -- there are many of them -- believe it is time to go back to the original ideal of the civil rights act which is basically to create communities in which

people experience each other in a more identified way across traditional boundaries. >> with that, we conclude the final panel. you have 30 minutes -- 25 minutes to get your blood sugar back, get some food. we will have the keynote in this room in 25 minutes. >> on the next washington journal, leo gerard discusses current trade policy negotiations and the reaction by unions. then the president of the american health policy institute is here to talk about the need for republican alternatives to the affordable care act if the supreme court rules against the administration is. a spotlight on magazines featuring scott baker -- sam baker.

washington journal is like every morning at 7 a.m. eastern. you can join the conversation every morning on facebook and twitter. indiana governor mike pence calls for a clarification on the states religious freedom law to make sure the law does not give businesses the right to discriminate. he blames the negative reaction to the bill on inaccurate reporting and calls on the legislature to have the legislation on his desk by the end of the week. the 35 minute news conference tuesday is courtesy of wxin in indianapolis. governor pence: thank you all for coming. it has been a tough week here in the hoosier state. but we are going to move forward. as governor i have the great privilege of serving the greatest people on earth. the people of indiana.

let me say first and foremost, i signed the religious freedom restoration act last week. i believe religious liberty, as president clinton said in 1993 it is our first freedom. it is vital to millions of americans who cherish faith as my family does. it is vital to the framework of our nation. and this legislation was designed to ensure the vitality of religious liberty in the hoosier state. i believe hoosiers are entitled to the same protections that are in place for our federal courts in the last 20 years and are the law in other states. clearly there has been confusion, misunderstanding, and misrepresentation of the law.

we've been working around the clock, talking to people around the state of indiana. women joined the people around indiana's hospitality and we have been listening. the religious freedom restoration act was about religious liberty. not about discrimination. as i said last week, had this long been about legalizing discrimination, i would have vetoed it. it does not give anyone a license to discriminate. it does not give anyone the right to deny services.

it is simply a balancing test given by our courts and jurisdictions across the united states. i do not believe for a minute it was intended for discrimination. i have poor discrimination. i believe in my heart of hearts that no one should be harassed because of who they are, who the law -- who they love and with the belief. personal reflection for a moment -- i abhor discrimination.

the way i was raised was like most hoosiers with the golden rule that you should do unto others as you would have do want to you -- do unto you. i believe in my heart of hearts that no one should be harassed because of who they are, who the law -- who they love and with the belief. i believe every hoosier shares that conviction. as i said, we got a perception problem because some people have a different view. we intend to correct that. after much reflection and in consultation with leadership of the general assembly, i've come to the conclusion that it would be helpful to move legislation this week that makes it clear this law does not give businesses the right to deny services to anyone.

let me say that again. i think it would be helpful in of a like to see on my desk before the end of the week legislation that is adding to this law that makes it clear that we are not discriminating anyone. we want to make it clear that indiana is open for business. we want to make it clear that hoosier hospitality is not a slogan, it is our way of life. it is a reason why people come here from around the world and they come back again and again and again. hoosiers are the kindest, most generous, most decent people in the world. let me say that i believe this is a clarification, it is also a fix. it is a fix of a bill that through mischaracterization and

confusion has come to be greatly misunderstood. and i'm determined to address this this week. to move forward as a state. i know we well. indiana has come under the harsh glare of criticism from around the country. and some of us get paid to be under the harsh glare of criticism, so we do not complain about it, but the things that have been said about our state have been at times deeply offensive to me. i will continue to use every effort to defend the good and decent people of indiana. i think it is important that we take this action this week. i've spoken to legislative leaders all the way through the last hour and we will be working to make that happen.

i will be happy to take questions. >> [inaudible] governor pence: this law does not give anyone the right to deny services to gay and lesbian couples. i could have handled that better this weekend. going into the interview this weekend, i was just determined to set the record straight on with what this law really is. i'm very pleased that the reporting about the religious freedom restoration act has significantly improved over the

last several days. i think there is a growing public understanding that indiana has passed a law that mirrors the federal law that president clinton signed, and that mirrors the laws and statutes of the other states. but i want to be clear on that point. thank you for the opportunity. >> do you regret having signed it? governor pence: absolutely not. religious liberty is vitally important in our nation. to ensure that hoosiers have the same level of scrutiny that they believe our religious liberty has in the state courts, that we already have in our federal court was simply the right thing to do. it is that important. i was pleased to sign it, and i stand by the law.

>> are you so opposed to giving protective status to gay people? governor pence: jim, i never supported that. i want to be clear. it is not on my agenda. i think it is a completely separate question. we're talking about the religious freedom restoration act. it is about restoring the highest level of scrutiny, when matters of government action intrude upon liberty. i believe that moving legislation this week would make clear this law does not give businesses a right to deny services with anybody would be appropriate. >> [inaudible]

governor pence: that is still under consideration. >> [inaudible] governor pence: was i expecting this kind of backlash? heavens, no. to be candid with you, when i first heard about the legislation, when i heard it was already federal law for more than 20 years, when i heard that it was the law through statute and court decisions, in the wake of last year's supreme court case, i thought it was an appropriate addition to our statutes. it moved through our legislative process with good debate but not a lot of controversy.

so when this erupted last week even though i made my position clear weeks ago that i would sign the bill without much discussion, i was taken aback. i have to tell you that the gross mischaracterizations about this bill early on, and some of the reckless reporting the media what this was all about was deeply disappointing to me and millions of hoosiers. we are making progress on that. we are turning back. i am grateful for expressions of support from around the country, particularly those in the media for reporting what this is all about. >> [inaudible]

are you making sure the language is specific? governor pence: the smear here is that it created a license to discriminate or a license to deny services. that is completely false. and baseless. the professor who i quoted this morning in my ed this is not a license to discriminate. i think the proper legislative remedy is to focus on the perception that has been created by the mischaracterization, and

to make it clear that this law does not give businesses a right to deny services to anyone. >> mayor greg ballard also spoke up about the bill. [inaudible] governor pence: i would leave it -- the public reaction? i think it is explained by the fact that this was grossly mischaracterized by some frankly sloppy reporting the first couple of days. i really do believe that. look, if i read some of the stuff about this bill, i would have the same concern that

millions of hoosiers have had and people across the country have had. it just isn't so. when president clinton signed this bill in 1993, the american civil liberties union said then that the religious freedom restoration act was the most important legislation considered by congress since the first amendment was approved. ok? when then state senator barack obama voted for this bill in illinois, it was with broad bipartisan support. one of the great pieces of legislative history of the religious freedom restoration act it has a way of bringing people together. consensus. this has been broadly supported on a bipartisan basis. i would suggest to you that what explains the concerns that have

been expressed across our state and our nation is the mischaracterization. we need to focus specifically on this perception that this creates some license to discriminate. that is what i am calling on the legislature to do. >> [inaudible] governor pence: i think that the language is still being worked out. what i want to make sure is that it is clear to hoosiers, to the people that i serve, and frankly clear to anyone who would come to visit our state. there is in this legislation no license to discriminate, no right to deny services. i think we can develop that

language. >> [inaudible] governor pence: this law does not give anyone a license to discriminate. this law does not give anyone the right to deny services. the language that i'm talking about adding i believe would be consistent with what the general assembly intended. >> [inaudible] governor pence: i am calling on the general assembly to send me a bill that focuses on the issue here.

that focuses on -- frankly, the smear that has been leveled against this law and the people of indiana. that somehow, through our legislative process, we enacted legislation that created a license to discriminate. that is so offensive to me as a hoosier. i know it is offensive to people across the state of indiana, that we have to correct that because it is not true. it has to do with the perception of our state and our businesses. >> [inaudible]

governor pence: we need to make it very clear. irrespective of where those ordinances are in community are not, that this law does not give businesses the right to deny service to anyone. >> [inaudible] governor pence: the intent of the law, when president clinton signed it, when i signed it, was to give the courts in our state the highest level of scrutiny in

cases where they feel their religious liberty is being infringed upon by government action. >> how does the state of indiana get its good name back? governor pence: it has a good name. this law has been smeared. we are going to mark our 200th anniversary next year. the name and reputation of the people of indiana is strong and secure. the reputation of this law and the intention of our legislature have been called into question. we need to deal with it, we need

to deal with it this week, and we will. we will fix this and we will move forward. that is what hoosiers do. >> [inaudible] governor pence: no comment. >> what exactly do you want to see in the clarification? governor pence: i want to make it clear in the law that the religious freedom restoration act does not give businesses the right to deny service to anyone. i have said before to people and i want to stipulate the coverage on this has gone better and more fair. but early on there was some really reckless and

irresponsible reporting about this. i would just submit to you that it is important that we address the principal allegation here. with legislation in this law that makes it clear that it does like you businesses the right to deny service to anyone. >> [inaudible] governor pence: i wasn't talking about you. frankly, can i say this, i don't want to let the indiana press off the hook here. i think the indiana press has

had this right from early on. some of the national reporting has been ridiculous. i would encourage you to do a quick google search. you will find all of it. >> [inaudible] governor pence: i have been on the phone. talking to business leaders, i have been reaching out to the leaders of associations and corporations around the country, setting the record straight about what this actually does, and what our intention is in passing it, and our intention to correct the perception that has taken hold.

>> [inaudible] governor pence: i think the more relevant event with the hobby lobby case by the supreme court. it was a case in point of the value of the religious freedom restoration act. it really is. obamacare was passed into law. it included mandates on health care coverage for businesses and hobby lobby and the university of notre dame, among others filed federal lawsuits to challenge obamacare under the religious freedom restoration act. the supreme court in the majority opinion last year upheld the right of private business owners, under the religious freedom restoration act. citing the act. here is the background.

in 1993, the federal law was signed by president clinton. in 1997, the supreme court of the united states ruled that the act did not apply to states that did not have their own statute. and that is why you have 19 states that have adopted statute. 11 other states that have adopted it in their case law. indiana never did. and so in the wake of the hobby lobby decision, to ensure that hoosiers in our state courts have the same level of scrutiny when their religious liberty they believe, is infringed upon, the general assembly moved this legislation. that was the precipitating event. >> [inaudible]

governor pence: people are entitled to their opinions. but, this law does not create a license to discriminate and it does not give businesses a right to deny services to anyone. i think it would be helpful if the general assembly were to get legislation to my desk that made that clear, and made that clear in the statute. >> court cases where the government is not a party? governor pence: the purpose of the religious freedom restoration act is to give people in this country the

opportunity to go into our courts, state and federal for more than 20 years where they believed that government action has imposed and impinged upon their religious liberty. that is the foundation of this idea. this is about -- this is about restraining government overreach. i want to say again, the reason why this is such a broad and bipartisan measure over much of the last two decades is because every american cherishes religious liberty. we all understand the importance of the freedom of conscience. it is enshrined in our constitution. it is enshrined in the constitution of the state. that is what this is about. i understand the perception of

this has gone far from what the law really is. we have been doing our best to correct that perception. however imperfectly. we will continue to do that. i want to say i'm extremely grateful for voices around the country who have stepped up and stood by indiana as we stand by this law. that being said, as governor of the state of indiana, i believe it would be the right thing to do. to move legislation that would make it clear this law does not give businesses the right to deny services to anyone. >> in your conversations with business leaders, are you confident? governor pence: those conversations are ongoing. i remain very hopeful that if we focus on the principal misperception that we will garner support, restore

confidence and we could move forward. >> [indiscernible] governor pence: i think a number of the 30 states that have the standards are in the same position indiana is in and the federal government is in in terms of protected status. let me say with great respect i think that is a separate issue. it is not my position. i am not advocating for it. i understand some people are. that is a separate question that should be considered separate from this idea of religious liberty and that we will give our courts in indiana the