The intersection between race, sex and the law has different effects depending on the area of law that is being examined. For example, in the area of employment law there is a pro-anti-discrimination framework . On the other hand, in the area of criminal law, the concept of rights can be derogated from in the interests of justice if there is a reasonable belief/suspicion . The case of Brown v Texas , however, illustrates when reasonableness will support the rights of the discriminated group. In the case of Brown v Texas it was held that:
“The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct”.
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This case prevented the stop and search framework implemented by Terry v Ohio being abused and supporting racial profiling. This is because the fundamental right to silence (which includes not answering questions when being stopped on the street) to be upheld. There is a problem with reasonableness, because it can allow for breaches of the Fourth Amendment on the grounds of so-called emergency measures (such as the war on drugs). This is illustrated in the case of Florida v Bostick where the right to refuse a search and seizure on buses did not fall under the Terry and Brown Tests, which illustrates that the protections in criminal law are limited.
Alternatively, the cases surrounding employment takes a different view to reasonableness. This is because the context and difference must be considered; whereby pure statistical analysis cannot be used for proof of discrimination . In addition, there must careful examination of difference, which is seen in the case of International Union aUAW v Johnson Controls . The UAW Case concerned whether it was legitimate to limit certain roles to women of child bearing age due to potential dangers. The court held no, because it is unconstitutional to allow dismissal to engage in a sterilization program, so the same is true for restricting a woman in these roles. As long as the woman knows of the dangers she can make her own choice, it is not for society or an employer to determine what is reasonable. Therefore, the employment cases are fundamentally different, which may be due to them in being entrenched in civil law and not criminal law. However, the greater respect in the employment cases and acceptance of difference, which includes the recognition of bias, may come from the fact that these cases dealt with gender and not race. Thus, the gender/race and civil/criminal dialectic creates a different set of rulings towards the application of reasonableness. This is because an objective reasonableness ruled the Brown, Terry and even Bostick cases. On the other hand, a conditional reasonableness was applied in the employment cases of Harris, EEOC and UAW.
The Terry Case clearly provides that there should be reasonable suspicion before an individual is stopped and search under the Fourth Amendment. This is developed in Brown to include a right to refuse to answer questions or submit to a search without criminality. However, Bostick illustrates how the rule in Terry (as extended by Brown) is undermined in respect to the particular concern of the war on drugs and transportation by bus. The dissenting judgment of Justice Marshall (as affirmed by Justices Blackmun and Stevens) is telling how the law will pervert the law to specific needs. As Marshall concluded in his dissent:
“The majority attempts to gloss over the violence that today’s decision does to the Fourth Amendment with empty admonitions. “If the war on drugs is to be fought,” the majority intones, “those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime” . The majority’s actions, however, speak louder than its words” .
The inference of the dissent illustrates that the law is breaching its own premise on the right to stop and search, albeit the excuse of an emergency is used. Thus, illustrating the law in action will create a legal fiction to correlate with the particular needs in a given case.
Arguably the same approach is applied in the EEOC Case, which used conditional reasonableness to highlight that women are less interested in Sears Sales Jobs than men, which is why there is a disparity in numbers. This may be true; however, there is a fundamental flaw in the analysis. This flaw is in using difference and conditional reasonableness, the law failed to recognize that the framework inherently biased the entrance of women . Therefore, the correct methodology was applied, however, in a perverted manner to meet the political bias against equality for women. This means that strategies need to be put in place to ensure that there is not perversion of legal rules.
A fundamental problem that is present in law school is that there is elitism and lack of diversity. This means that future lawyers generally do not have the necessary understanding to create change, especially as the lawyer factory is perpetuating norming and bias. This can be seen in the failure to allow more proactive approaches to law school admissions to create greater diversity. The Bakke Case is a clear indication of this, because when a quota system was put in place it was deemed unconstitutional under the 14th Amendment, which one can identify that the system is reinforcing the elite that were meant to be protections for the average person. There has been acceptance of a “soft factors” system of admission. Nevertheless, there has been legally criticized as an unconstitutional quota system (as it does promote diversity) . These arguments failed, but the indication is clear that “opening up” the system to different walks of life will create discord. However, the act of opening up the system to diversity is necessary to ensure that there is greater understanding of diversity and the real world. Thus, until there is a break up of elitism in legal education, there will be misuse of the legal system to manipulate legal rules to maintain the needs of the elite.
- Brown v Texas 443 US 47 (1979)
- EEOC v Sears, Roebuck & Co 628 F Supp 1264 (1986)
- Florida v Bostick 501 U.S. 429 (1991)
- Gratz v. Bollinger (2003) 539 U.S. 244
- Grutter v. Bollinger (2003) 539 U.S. 306
- Harris v Forklift Systems Inc 114 S Ct 367 (1993)
- International Union UAW v Johnson Controls (1991) S Ct 1196 (1991)
- Regents of University of California v. Bakke (Bakke Case) (1978) 438 U.S. 265
- Terry v State of Ohio 392 US 1 (1968)
