Antidiscrimination Law for a New Era

Reva Siegel and Douglas NeJaime have been writing together on topics related to law and inequality for “let’s call it an even decade,” said Siegel, the Nicholas deB. Katzenbach Professor of Law. They’d co-authored many articles, book chapters, and essays — among them “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics” in the Yale Law Journal and “Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy” in the New York University Law Review — and co-teaching a class seemed like a natural next step in their collaboration.

In designing their course Law and Inequality, NeJaime and Siegel took an intentionally broad view of the topic. While a traditional antidiscrimination law class might cover the Constitution and the basics of equal protection law and civil rights law, focusing on race and sex discrimination law, Siegel explained, “we don’t limit our course to those bodies of law.” This year’s course covered LGBTQ rights, reproductive justice, religious liberties, and the interactions among them.

In addition to federal law, the class covers state law as well — not the usual domain of law school classes.

“Something like state family law,” explained NeJaime, the Anne Urowsky Professor of Law, “might be animated by equality principles, even if it’s not speaking in registers of traditional antidiscrimination. In another generation it might shape the development of federal law.”

That wide-open approach is part of what drew Pragya Malik ’24 to Law and Inequality. She’s long been interested in how marginalized groups make their voices heard, “but I felt like we were at this point where the Supreme Court … looked more like an obstacle rather than a place where change would happen,” she said. “I was curious to learn about the history of how different social movements have used courts and other fora to advance their causes and use that to understand where we go from here.”

Course sessions typically began with “an opening question to which nobody has a good answer,” said Alex Johnson ’24. “And then by the end of class, we’re all substantially closer to being able to articulate an answer.”

The advantage of a three-hour seminar — a mixture of lecture and discussion — is that “by hour one, you’ve hit the surface-level points, by hour two, you start going a little deeper, and by hour three, it’s really had time to marinate,” Malik said.

The emphasis on class discussion was especially welcome to Johnson.

“I’ve been really appreciative of my classmates and what I’ve been able to learn from them,” she said. “They had really insightful and thoughtful things to say about this work, whether it’s coming from their lived experience, or work that they’ve done in other contexts, or just their good old-fashioned intellect.”

For instance, the class’s conversation about parent-child relationships — one of the semester’s many lively discussions — “brought me out of my comfort zone into arguments that I hadn't really grappled with,” Malik said, about topics including how to determine what a parent is and the limits of thinking about parenthood in strictly biological terms.

To accompany their nontraditional take on an antidiscrimination law class, Siegel and NeJaime devised a nontraditional law school assignment as well. Each student wrote a short persuasive piece in the form of a blog post or newspaper op-ed, then presented it to the class for feedback; two full class sessions were devoted to this process. The aim, NeJaime explained, was to teach students how to “make arguments that might be compelling to people outside their normative universe.”

“We want both to support them in thinking big about social change,” Siegel added, “but also thinking in a savvy way about enlisting possibly surprising sources of support in the pursuit of change.”

For Johnson, the assignment shook loose old skills and memories (“I hadn’t written an op-ed since I was on my high school newspaper,” she said) and reminded her that the adversarial mindset isn’t always the most effective one. As both a law student and a former competitive debater, “I’m used to being in the position of negating and rebutting, as opposed to convincing,” she said. The writing exercise helped her think about how to “identify shared common ground and build from there into convincing my intended audience to change their minds.”

Siegel said she hopes the class — through its readings, writing assignments, and discussions—left students with the skills and mindset that will prepare them for the struggles ahead. “We want them to be technically agile and tough,” she said, “and we want them to think big and be creative and be confident.”

Malik has certainly gained a renewed sense of what’s possible.

“Thinking about where there is still openness for equality claims to be made was something that was exciting to me, especially because of the alienation and some of the cynicism I felt thinking about the current Supreme Court,” she said.

Johnson, too, feels ready to advance civil rights in different venues and with different methods than she previously imagined.

“Thinking about things solely in terms of rights and litigation is thinking about things too narrowly,” she said. “There’s work to be done in the advocacy space, there’s work to be done in the legislatures, there’s work to be done at the state levels.” And she’s prepared to tackle it all.