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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.

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Washburn Law Journal



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