Document Type

Article

Publication Date

1-1-1999

Abstract

In Black Women, Gender Equity and the Function at the Junction, I argued that an equality-based legal regime does not provide an adequate remedy for African-American female athletes. Instead I suggested that a tort-based regime may be more appropriate. I did so knowing that gender and racial discrimination are torts and I did not intend to suggest otherwise. They are statutory torts founded upon equality principles. What I intended was to draw more upon the general tort principles involved in an antidiscrimination action. I specifically invoked the notion of using mass tort theories. I wish to sketch a brief but more detailed framework for this proposition in this article. In particular, I want to consider potential challenges brought by African-American females at the collegiate and K- 12 levels, which will be based upon Titles V12 and IX. Regardless of which analysis is used, a remedy for racial discrimination or gender discrimination will not adequately compensate black women for the discrimination they uniquely suffer. That is because the antidiscrimination laws are equality-based which try to provide the same remedy to those affected by the same discriminatory force. It would be inappropriate to award a black woman a greater remedy than a black male or white female denied the same job for wrongful reasons. In many instances, the standard antidiscriminatory approach leaves black women no remedy at all.

Publication Title

Washburn Law Journal

Volume

38

First Page

817

Included in

Law Commons

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