Professor argues for 'postracial remedies' to address American racial disparities in constitutional way

Tuesday, May 17, 2016

LAWRENCE — For many people, Barack Obama’s election to the nation’s highest office proved that race is no longer a barrier to the American Dream — that we are living in a “postracial” society. The Supreme Court’s equal protection jurisprudence seems to support this position. However, evidence suggests that lingering racial bias persists in police relations, education, incarceration, employment and other aspects of everyday life. A University of Kansas law professor has co-authored an article calling for “postracial remedies” as a means to fight these disparities in a politically feasible, constitutional way.

The Supreme Court has limited the availability of remedies for racial inequality by blocking race-specific measures such as affirmative action, rejecting constitutional claims based on “disparate impact” and ruling that the Constitution does not prohibit private acts of discrimination. Given these legal precedents, coupled with the fact that racial harmony has not become reality, Richard Levy and Derrick Darby propose “pragmatic solutions for the economic, social and structural problems that disproportionately burden African-Americans without treating people differently because of their race.”

“We are hopeful that creating a rising tide to lift all boats can go a long way toward mitigating racial disparities in America,” they wrote.

Levy, the J.B. Smith Distinguished Professor of Constitutional Law at KU, and Darby, professor of philosophy at the University of Michigan, began their collaboration when Darby, who was then a faculty member in KU’s philosophy department, served an intra-university professorship in the law school, and the two co-taught a seminar on socioeconomic rights that require government support, such as a right to education. The two collaborated on an article shortly thereafter and continued to discuss various issues of mutual interest.

“Over the course of our discussions, Derrick would often talk about postracialism and how it’s come to dominate our political landscape,” Levy said. “I drew the connection to legal doctrine, particularly to the Supreme Court’s equal protection jurisprudence.”

Levy and Darby have presented their study at the University of Chicago Law School, Stanford University and the KU School of Law. They don’t agree that the days of slavery, Jim Crow laws and overt racism are completely in the past. Instead, they recognize that race-specific solutions face significant political and legal barriers. While the left wing of the political landscape argues reparations and affirmative action are necessary to compensate for past discrimination and the opposing side argues enough time has passed for African-Americans to “solve their own problems,” Levy and Darby contend there are countless good reasons to address racial disparities, regardless of blame or political persuasion.

The authors argue that it is more effective to target the socioeconomic issues underlying racial disparities on the theory that solving these broader problems will also reduce racial inequality. For example, enhancing investments in public education or offering free college tuition could help counter educational disparities for many people.

Solutions should not come from litigation first, they argue, but through policy, voluntary changes, elections and political work.

“We think the big advantage of this approach is, instead of creating a zero-sum game, it invites bridge building and solutions that are much more likely to withstand legal challenges,” Levy said.

Implementing changes at the local level will help identify approaches that can be followed elsewhere. On the national stage, political divisiveness impedes progress. But at the community level, people are often more concerned with solving problems than with ideology, Levy said.

The article cites improving relationships between police forces and minority communities as an example. This goal is more likely to be achieved by asking, “How can we avoid becoming the next Ferguson, Missouri?” than through a confrontation that accuses both sides of being racist.

“As the current presidential election season makes clear, the nation is deeply polarized about many matters, including issues of race. We disagree about whether race still matters, whether discrimination is still a major factor in perpetuating inequality, and over what role, if any, society should play in addressing such matters,” Darby said. “Our research calls attention to the philosophical, psychological and constitutional obstacles to addressing racial disparities using remedies that focus on race. And we argue that remedies which are sensitive to the problems of race, but that are not race specific, are a promising way forward for dealing with racial inequality in view of these obstacles.”

The authors make clear that pursuing postracial remedies does not require accepting a postracial narrative, nor abandonment of advocacy to combat discrimination.

“We do not suggest that advocates of racial justice should be silent about” ongoing discrimination, implicit biases or systemic barriers, Levy and Darby wrote. “We do, however, suggest that there may be practical advantages to addressing them without the use of race-specific remedies, which are both politically and legally unrealistic at the moment.”

Although the United States is clearly not a postracial nation, Levy and Darby argue that postracial remedies are “sorely needed in our deeply polarized society smitten by the belief that race and racism are no longer significant barriers to living the American Dream.”

Law professor Virginia Harper Ho awarded tenure

Wednesday, May 11, 2016

LAWRENCE — Chancellor Bernadette Gray-Little has approved promotion and the award of tenure where indicated for 70 individuals at the University of Kansas Lawrence and Edwards campuses and 66 individuals at the KU Medical Center campuses.

Chancellor Gray-Little, Interim Provost and Executive Vice Chancellor Sara Rosen, who chairs the University Committee on Promotion and Tenure on the Lawrence campus, and Dr. Douglas Girod, executive vice chancellor at the KU Medical Center, issued a joint statement of congratulations.

“Congratulations to the exceptional faculty and researchers who’ve reached the next milestone in their careers. These faculty represent the comprehensive research and educational excellence of our vibrant campuses. KU’s dedicated scholars and educators are addressing the challenges of our changing world and driving this university forward as a major research institution. Their enthusiasm and involvement further our mission of educating leaders, building healthy communities and making discoveries that change the world. The commitment they have to ensure students succeed is inspiring.

“The University Committees on Promotion and Tenure on both campuses did an excellent job evaluating the many eligible candidates. We hope the entire university will join us in recognizing these educators who devote their talents and energy to uphold the institution's ideals through research, teaching and service.”

At the KU Lawrence and Edwards Campuses

To full professor

  • Giselle Anatol, English           
  • Christopher Anderson, business
  • Rafe Brown, ecology & evolutionary biology/senior curator, Biodiversity Institute
  • Roberto de Guzman, molecular biosciences
  • David Fowle, geology 
  • Sherry Fowler, history of art
  • Bruce Frey, educational psychology
  • Brian Haaheim, music
  • Virginia Harper Ho, law, with tenure
  • Alfred Tat-Kei Ho, public affairs & administration
  • Matthew Jacobson, film & media studies
  • Kirsten Jensen, ecology & evolutionary biology/senior curator, Biodiversity Institute
  • Mark Joslyn, political science
  • Clarence Lang, African & African American studies/American studies
  • Gwendolyn Macpherson, geology
  • Lorin Maletsky, mechanical engineering
  • Jeremy Martin, mathematics
  • Kristi Neufeld, molecular biosciences
  • Ebenezer Obadare, sociology
  • Jennifer Roberts, geology
  • Karrie Shogren, special education/senior scientist, Life Span Institute
  • Candan Tamerler, mechanical engineering, with tenure
  • Kevin Willmott, film & media studies
  • Liang Xu, molecular biosciences
  • Jie Zhang, linguistics

To associate professor with tenure

  • Jacquelene Brinton, religious studies
  • Scott Bronson, business
  • Darren Canady, English
  • Eric Deeds, molecular biosciences/Center for Computational Biology
  • John Derby, visual art
  • Prajnaparamita Dhar, chemical & petroleum engineering
  • Christopher Elles, chemistry
  • Mariana De Oliveira Farah, music
  • Jacob Fowles, public affairs & administration
  • Sarah Frisof, music
  • Veronica Garibotto, Spanish & Portuguese
  • Deanna Hanson-Abromeit, music
  • Mathew Johnson, mathematics
  • Chad Kraus, architecture
  • Rachel Krause, public affairs & administration
  • Lingjia Liu, electrical engineering & computer science
  • Marshall Maude, visual art
  • Felix Meschke, business
  • Radu “Alex” Moise, pharmacology & toxicology
  • Peter Ojiambo, African & African American studies
  • Alison Olcott Marshall, geology
  • Jarron Saint Onge, sociology/health policy & management, KU Medical Center
  • Armin Schulz, philosophy
  • Hyunjin Seo, journalism
  • William Leo Smith, ecology & evolutionary biology/associate curator, Biodiversity Institute
  • Antonio Tosta, Spanish & Portuguese
  • Zhuo Wang, pharmaceutical chemistry
  • Jomella Watson-Thompson, applied behavioral science
  • Wei Wu, psychology
  • Molly Zahn, religious studies

Tenure awarded at current rank of associate professor

  • Andres Lepage, civil, environmental & architectural engineering

KU Libraries

  • Karen Cook, to librarian
  • Laura Ada Emmett, to librarian
  • Sara Morris, to librarian
  • Brian Rosenblum, to librarian
  • Miloche Kottman, to associate librarian with tenure

Academic Staff (effective with the start of Fiscal Year 2017)

  • Kathleen Baggett, Life Span Institute, to research professor
  • Susan Earle, Spencer Museum of Art, to associate curator
  • Kris Ercums, Spencer Museum of Art, to associate curator
  • Michael Hock, Center for Research on Learning, to senior scientist
  • Rudy Serbet, Biodiversity Institute, to senior specialist
  • Celka Straughn, Spencer Museum of Art, to associate specialist
  • Janelle Ruisinger, pharmacy practice, to clinical professor
  • Jie Bang “Stephen” Yan, Center for Remote Sensing of Ice Sheets, to associate scientist
  • Qiang “Charles” Ye, Bioengineering Research Center, to associate scientist

At the KU Medical Center Campuses

To associate professor (affiliate track, Stowers Institute, nontenure track)

  • Julia Zeitlinger, School of Medicine-Kansas City Campus Department of Pathology and Laboratory Medicine

To professor on clinical scholar track (nontenure track)

  • John Dorsch, School of Medicine-Wichita Campus Department of Family and Community Medicine
  • Mike Kennedy, School of Medicine-Kansas City Campus Department of Family Medicine
  • Richard Korentager, School of Medicine-Kansas City Campus Department of Plastic, Burn and Wound Surgery
  • Franz Winklhofer, School of Medicine-Kansas City Campus Department of Internal Medicine

To associate professor on clinical scholar track (nontenure track)

  • Osama Almadhoun, School of Medicine-Kansas City Campus Department of Pediatrics
  • Jane Broxterman, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Zachary Collins, School of Medicine-Kansas City Campus Department of Radiology
  • Krishna Dummula, School of Medicine-Kansas City Campus Department of Pediatrics
  • Winston Dunn, School of Medicine-Kansas City Campus Department of Internal Medicine
  • L. Christine Faulk, School of Medicine-Wichita Campus Department of Internal Medicine
  • Ann Genovese, School of Medicine-Kansas City Campus Department of Psychiatry
  • Kari Harris, School of Medicine-Wichita Campus Department of Pediatrics
  • Archie Heddings, School of Medicine-Kansas City Campus Department of Orthopedic Surgery
  • Robin Heinrichs, School of Medicine-Wichita Campus Department of Psychiatry
  • Gina Hendren, School of Medicine-Kansas City Campus Department of Anesthesiology
  • Erica Howe, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Marc Inciardi, School of Medicine-Kansas City Campus Department of Radiology
  • Jessica Kalender-Rich, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Vincent Key, School of Medicine-Kansas City Campus Department of Orthopedic Surgery
  • Theresa King, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Deborah Kroeker, School of Medicine-Wichita Campus Department of Pediatrics
  • Angela Lennon, School of Medicine-Kansas City Campus Department of Pediatrics
  • James Lin, School of Medicine-Kansas City Campus Department of Otolaryngology
  • Tara Lin, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Becky Lowry, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Smith Manion, School of Medicine-Kansas City Campus Department of Anesthesiology
  • Katherine Palmieri, School of Medicine-Kansas City Campus Department of Anesthesiology
  • Vishal Pandey, School of Medicine-Kansas City Campus Department of Pediatrics
  • William Salyers Jr., School of Medicine-Wichita Campus Department of Internal Medicine
  • John Sojka, School of Medicine-Kansas City Campus Department of Orthopedic Surgery
  • Damion Stevens, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Kimberly Swan, School of Medicine-Kansas City Campus Department of Obstetrics and Gynecology

To professor (clinical track, full-time, nontenure track)                                                            

  • Grace Shih, School of Medicine-Kansas City Campus Department of Anesthesiology

To clinical professor (clinical track, full-time, nontenure track)

  • William Cathcart-Rake, School of Medicine-Salina Campus Department of Internal Medicine

To clinical professor (clinical track, volunteer, nontenure track)

  • Randall Morgan, School of Medicine-Wichita Campus Department of Obstetrics and Gynecology
  • Tarris Rosell, School of Medicine-Kansas City Campus Department of History and Philosophy of Medicine 

To associate professor (clinical track, full-time, nontenure track)

  • Jennifer Jackson, School of Medicine-Wichita Campus Department of Internal Medicine

To clinical associate professor (clinical track, full-time, nontenure track)

  • Abha Shah, School of Medicine-Kansas City Campus Department of Anesthesiology
  • Jason Sokol, School of Medicine-Kansas City Campus Department of Ophthalmology

To clinical associate professor (clinical track, volunteer, nontenure track)

  • Bradley Barth, School of Medicine-Kansas City Campus Department of Emergency Medicine
  • David Lisbon, School of Medicine-Kansas City Campus Department of Emergency Medicine
  • Melissa Hague, School of Medicine-Wichita Campus Department of Obstetrics and Gynecology
  • Jared Marx, School of Medicine-Kansas City Campus Department of Emergency Medicine

To associate professor (educator track with tenure)

  • Catherine Satterwhie, School of Medicine-Kansas City Campus Department of Preventive Medicine and Public Health  

To professor (educator track with tenure)

  • Ming Zhang, School of Medicine-Kansas City Campus Department of Anatomy and Cell Biology

To professor with tenure

  • Lemuel Russ Waitman, School of Medicine-Kansas City Campus Department of Internal Medicine

To professor (previously tenured)

  • Guoqing Chen, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Cheryl Gibson, School of Medicine-Kansas City Campus Department of Internal Medicine
  • Benyi Li, School of Medicine-Kansas City Campus Department of Urology
  • Gregory Reed, School of Medicine-Kansas City Campus Department of Pharmacology, Toxicology and Therapeutics
  • Michael Werle, School of Medicine-Kansas City Campus Department of Anatomy and Cell Biology

Tenure awarded (at current rank of associate professor)

  • Brooke Fridley, School of Medicine-Kansas City Campus Department of Biostatistics
  • Xiaogang Li, School of Medicine-Kansas City Campus Department of Internal Medicine

To associate professor with tenure

  • Gretchen Dickson, School of Medicine-Wichita Campus Department of Family and Community Medicine
  • Jeannine Goetz, School of Health Professions Department of Dietetics and Nutrition
  • Severin Gudima, School of Medicine-Kansas City Campus Department of Microbiology
  • Tami Gurley, School of Medicine-Kansas City Campus Department of Health Policy and Management
  • Holly Hull, School of Health Professions Department of Dietetics and Nutrition
  • Sarah Kessler, School of Medicine-Kansas City Campus Department of Family Medicine
  • Sean Kumer, School of Medicine-Kansas City Campus Department of Surgery
  • Matthew Macaluso, School of Medicine-Wichita Campus Department of Psychiatry
  • Laura Martin, School of Medicine-Kansas City Campus Department of Preventive Medicine and Public Health
  • Priya Padmanabhan, School of Medicine-Kansas City Campus Department of Urology
  • Neena Sharma, School of Health Professions Department of Physical Therapy and Rehabilitation Science
  • Catherine Siengsukon, School of Health Professions Department of Physical Therapy and Rehabilitation Science.

UO Today with Maxine Burkett and Elizabeth Kronk Warner

Maxine Burkett, Law, University of Hawai'i, and Elizabeth Kronk Warner, Law, University of Kansas, talk about how climate change impacts indigenous communities on Pacific Islands and in the Arctic. They discuss the role law can play in planning for adaptation to loss of resources and land. Burkett and Warner were keynote speakers at the UO's Climate Change and Indigenous Peoples Symposium, addressing tribal sovereignty, traditional knowledges, and climate-induced change among indigenous peoples in the U.S.

Exploring How Cities Can Switch To A Low-Carbon Energy Grid

"A law professor from the University of Kansas has explored innovative approaches for cities to switch to a low-carbon energy grid.

Uma Outka, an associate professor of law at the University of Kansas, is the author behind Cities and the Low-Carbon Grid, an upcoming article in the journal Environmental Law. The paper details innovative approaches cities and communities can use to cut carbon emissions, and how these efforts will affect energy governance in years to come.

Law professors honored for work that freed innocent man from prison

Thursday, April 21, 2016


KU Law Professors Alice Craig, Elizabeth Cateforis and Jean Phillips

LAWRENCE – Three University of Kansas law professors were recognized this week for demonstrating “compassion, dedication and tenacity” through nearly a decade of work to free an innocent man from prison.

Jean Phillips, Elizabeth Cateforis and Alice Craig of KU Law’s Paul E. Wilson Project for Innocence & Post-Conviction Remedies received the Sean O’Brien Freedom Award from the Midwest Innocence Project during its annual Faces of Innocence benefit Tuesday evening in Kansas City, Missouri.

The three were singled out for their leading role in winning the exoneration of Floyd Bledsoe, who spent 16 years behind bars for a murder he didn’t commit. Students and faculty in KU Law’s Project for Innocence worked on Floyd’s case for nearly a decade before new DNA evidence and a suicide note confession from his brother cleared his name.

“The best feeling a lawyer can have is walking out of court or prison with an innocent client who is finally being freed after a decade or more of wrongful incarceration. Everybody would love to have that feeling, but few lawyers are willing to do what it takes to get there,” said Sean O’Brien, associate professor at the UMKC School of Law and the award’s namesake. “The work of Jean, Beth and Alice reminds me of something Mother Teresa said: ‘There are no great deeds, only ordinary deeds, done with great love.’ That’s what these lawyers are all about.”

Through its partnership with KU Law, the Midwest Innocence Project provided funding for new DNA testing in Floyd’s case.   

“The MIP working with KU Law is a model of what legal partnerships can be,” said Oliver Burnette, executive director of the MIP. “Since the Paul E. Wilson Project for Innocence is such a recognized source of expertise and dedication, MIP’s resources and legal team can act as a force-multiplier for the good work already being done.”

All three honorees graduated from the KU School of Law in the 1990s and worked on the Project for Innocence – then known as the Defender Project – during law school. Phillips has served as director of the project since 1999. She hired Cateforis as a supervising attorney that same year, and Craig joined the team in 2004.  

“I had the good fortune to learn from David Gottlieb, and he taught me the dangers of passing judgment and failing to see that human beings are worthy of respect and compassion. I left that experience knowing that I was put here to battle against simply putting people in prison and forgetting about them,” Phillips said. “We look forward to a time when we actually work ourselves out of a job. One client at a time – one Floyd Bledsoe at a time – we get a little bit closer to that goal.”

The Project for Innocence was founded by former KU Law Professor Paul E. Wilson as the Defender Project in 1965 to help prisoners who otherwise might not receive legal representation. Working under the supervision of faculty attorneys, students in the clinic represent state and federal prisoners in appellate and post-conviction litigation in state and federal courts. The program has won more than 40 direct appeals, constitutional challenges and actual innocence cases since 2008.

The Midwest Innocence Project, a member of the national Innocence Network, is dedicated to the investigation, litigation and exoneration of wrongfully convicted men and women in Kansas, Missouri, Arkansas, Iowa and Nebraska. The MIP partners with KU Law’s Project for Innocence and other regional innocence organization by providing legal and financial support to enhance local exoneration efforts.

Law professor calls for 'risk-related activism' to avoid new financial crisis

Thursday, April 21, 2016

LAWRENCE — Since the financial crisis of 2008, debate has raged over how to prevent the next one. A University of Kansas professor has published a study arguing that institutional investors, like mutual funds and pension funds, need to be part of the solution.  

Virginia Harper Ho, associate professor of law, Docking Faculty Scholar and Webb Hecker Jr. Teaching Fellow at the KU School of Law, has published “Risk-Related Activism: The Business Case for Monitoring Nonfinancial Risk” in the Journal of Corporation Law. The article calls for leading investors to engage in risk-related activism — the use of shareholder power to promote firm management, mitigation and disclosure of risk.

Harper Ho argues that there are potential economic payoffs to investors, firms and capital markets when leading investors pay closer attention to nonfinancial or “environmental, social and governance” (ESG) risks, like those associated with executive compensation practices, global supply chains and climate change. Financial risks are typically hedged, but many of these nonfinancial risks may not even be on companies’ radar screens.

A recent example of risk-related activism cited in the paper is the “boardroom accountability” campaign kicked off in 2014 by New York City ’s public pension funds. The campaign targeted 75 major public companies and pushed for proxy access — corporate bylaw changes that would open certain corporate board seats to candidates nominated by shareholders. Its backers hoped shareholder nominees might take their concerns about ESG risks more seriously, and the campaign has been a clear success. During the 2015 proxy season, more than 70 percent of proxy access proposals were approved, creating momentum for more companies to adopt proxy access this year. 

Although large institutional investors haven’t played a real monitoring role historically, Harper Ho argues that New York City’s campaign and others like it show that they can and many already do. In fact, Harper Ho says, asking whether investors should play a role or not in monitoring corporations is the wrong question. The reality is that in “the post-financial crash landscape, investors have more power to influence corporate practice not just because of their voting power but because Congress has given them more of a voice,” she said. “The real question now is how investors should use that power.”

Her article goes on to argue that more investors should push for better risk management and oversight from the firms they invest in. As Harper Ho writes, enterprise risk management, known as ERM, and risk oversight is already a top priority for publicly traded firms, and many recognize the importance of looking at risk broadly, but she notes “investment advisers and the legal community will remain skeptical, or even hostile, toward risk-related activism and related responsible investment practices so long as they believe them to be value-depleting, risk-enhancing or otherwise at odds with investors’ fiduciary duties and economic interests.”

Harper Ho’s article responds by countering potential objections from conventional finance theory and presenting evidence that institutional investors can improve and protect portfolio value if they pay more attention to nonfinancial risk. For example, she points to a wide range of studies showing that lowering ESG risks can lower companies’ cost of capital and also protect portfolio value in volatile markets. The business case for ESG investment strategies, she argues, also explains why more investors might reap financial rewards from engaging in risk-related activism or voting in favor of those who do.

Harper Ho also outlines steps institutional investors and policymakers can take to reorient how corporate boards address nonfinancial risk, but she acknowledges that market-driven investor oversight alone cannot prevent excessive risk-taking by corporate managers. She argues instead that a sustainable financial system, in every sense of the word, will also mean taking seriously how institutional investors’ own behavior contributes to excessive risk-taking by corporate managers and may even pose systemic threats to modern financial markets.  

Her article points to steps the United Kingdom, the European Union and other leading markets are taking to improve investor monitoring of portfolio firms, and she calls for regulators in the United States to adopt similar policy guidelines. Such measures could encourage institutional investors to monitor the companies they invest in and would also have the added benefit of requiring greater accountability from investors for how they use their power.

“Although this article offers starting points that could facilitate risk-related activism, ESG integration and better institutional monitoring, the real barriers to these reforms are not regulatory, but conceptual,” Harper Ho writes. In the end, simply realizing that nonfinancial risks are real, and that they matter to investors, might be a great place to start.
 

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Why KU
  • One-third of full-time faculty have written casebooks and treatises
  • 2 KU law faculty were U.S. Supreme Court clerks
  • KU’s Project for Innocence: 34 conviction reversals since 2009
  • 7,600+ alumni in all 50 states, D.C., and 21 foreign countries
  • #18 “best value” law school in the nation — National Jurist Magazine
  • 12 interdisciplinary joint degrees
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  • 80 percent of upper-level law classes have 25 or fewer students
  • More than 600 employment interviews at law school, 2014-15
  • 92 percent overall employment rate for Class of 2014 – top 20 percent nationally
  • 23rd: for number of law alumni promoted to partner at nation’s largest law firms
  • #1 in Kansas and Missouri for July 2015 bar exam performance