PUBLISHED:February 21, 2008

Trina Jones

Trina Jones looks forward to the day when this country will be “less racist, less sexist, less homophobic, less oblivious to socio-economic disadvantage, and a lot more loving.” This day will only happen, she says, if we tackle discrimination with a level of forthrightness that she finds sadly lacking in public and legal discourse.

“What is discrimination? What is equality? What are the goals of anti-discrimination law in the 21st century? Is that law still animated by corrective and distributive justice principles? Does it, can it, account for implicit bias?” Jones asks. “In a world of Jim Crow racism, ‘White Only and Colored Only’ signs defined the immediate targets and goals of anti-discrimination law. But in a changing social context, where actions are driven as much by unconscious bias as by overt prejudice, where intra-group screening is replacing the more blatantly exclusionary practices of the past, the answers to these questions have become more pressing,” she says.

Jones has searched the Supreme Court’s equal protection jurisprudence for a coherent definition or understanding of discrimination across cases dealing with race, gender, sexuality, and class. “It’s not there,” she writes in “The Limits of Loving: Coherence or Chaos in Antidiscrimination Law,” a scholarly work in progress. Instead, she finds a court mired in formulae that dictate the level of judicial scrutiny to be applied to a set of circumstances and that essentially dictate outcome.

Beginning with United States v. Carolene Products Company, the 1938 ruling that first articulated the Court’s inclination to apply higher levels of scrutiny to legislation affecting politically vulnerable groups, Jones traces the evolution of the Court’s methodology for identifying protected classifications and the three-tiered framework of review — one not mandated by the 14th Amendment — the Court employs in assessing equal protection claims.

Having stated that racial classifications were suspect in its 1944 ruling in Korematsu, the Court firmly established that they are “presumptively illegitimate” and began to identify the bases upon which it would determine the status of other groups in a series of cases in the 1960s and 1970s, Jones explains. “The Court began systematically to set forth and to rely on five factors — pervasiveness, majority/minority status, relevance, immutability, and visibility — to determine which classifications would receive what level of judicial scrutiny,” she says. “Over time these criteria hardened and were used to cement the status of race, sex, sexuality, and class on an equal protection hierarchy.”

Evident in the case law, Jones points out, is that as the number of variables increases, so too does the level of review. “Because race is immutable or unchangeable, irrelevant [to ability], and highly visible, and because race has been used on a pervasive basis historically to oppress politically powerless racial groups, race is subject to a heightened level of review or ‘strict scrutiny,’ meaning that racial classifications must serve a compelling state interest and the means utilized to pursue that interest must be narrowly tailored. This level of review reflects skepticism about whether racial classifications can ever be used for legitimate purposes,” she says.

In contrast, classifications involving gender are subject to “intermediate scrutiny;” they must further an important governmental objective and the means employed must be substantially related to achievement of that goal. “Sex is for the most part immutable and visible, though women are not a numerical minority,” Jones points out. “More importantly, some people — more critically, some justices — still believe that sex may be a relevant and legitimate distinction in certain circumstances.” Sexuality and class-based distinctions are considered presumptively lawful and accorded the lowest standard of review, subject only to a “rational basis” test. Implicit in this standard is the controversial notion that sexuality and socioeconomic class, at least to some extent, are matters of choice, she observes.

“The Court is caught up in formulas. It looks at the classification, decides on the level of review, and reaches an outcome,” says Jones. “What is not coming through in the cases is a coherent theory of discrimination and a clear and consistent articulation of the goals of equal protection. This is because the Court is not really focused on defining what discrimination is and when it should be proscribed.

“I don’t disagree with the proposition that groups are differently situated and that we must be attentive to these differences,” she adds. “What I take issue with is the idea that we can only account for these differences by adopting varying review levels that are largely driven by five factors. Should the absence of one or more of these factors mean the discrimination isn’t as problematic or that the analytical framework ought to change or be ratcheted down?”

Jones would like to see the Court focus on what is actually happening to people. She recommends adopting a single standard of review for alleged equal protection violations, one that approximates intermediate scrutiny. “Such a standard would not render classification schemes presumptively unlawful, but would require an examination of and focus on context before any conclusions about legality are reached.”

For Jones, whose teaching focus includes civil procedure, employment discrimination, and race and the law, and whose research interests include examinations of prejudice based on socio-economic factors and skin color as distinct from race, “The Limits of Loving” is the latest in a series of scholarly projects that analyze the limits of modern approaches to civil rights protection.

In a 2006 collection of essays, which she co-edited with Duke Law Professor Paul Carrington, Jones’ focus is socio-economic inequality. “Law and Class in America exposes the way in which legal reforms over the last 25 years have systematically harmed poor people,” she says. “The book doesn’t simply focus on education, welfare, and crime. It also explores areas that are not as frequently associated with socio-economic justice, like corporate law, antitrust, tort law, civil procedure, and international law, among others.” An upcoming symposium issue of Law and Contemporary Problems, which Jones is coediting with Professor Terry Smith of Fordham Law School, will expand upon this work by examining the symbiotic relationship between race and class.

In her 2005 article, “The Diversity Rationale: A Problematic Solution,” Jones critiques the 2003 rulings in Grutter v. Bollinger and Gratz v. Bollinger, cases involving race-based admissions policies at the University of Michigan, when the Supreme Court found that “educational benefits flowing from a diverse student body constitute a compelling state interest, and that colleges and universities may consider race in order to secure these benefits.”

“Diversity’s vagueness, combined with its forward-looking orientation … leads people to approach diversity in an a-historical and an a-contextual manner,” Jones writes, arguing that diversity advocates should focus on groups that have been historically excluded and eliminate barriers to their inclusion. “While a racially diverse student body benefits everyone, what is really being sought through these admissions policies is access for racial minorities to institutions from which they have been and still are systematically and disproportionately excluded because of racism. Thus, the real problem is historical and contemporary racism. Lack of diversity is its consequence.”

Grutter and Gratz also were central to Jones’ 2006 article, in “Brown II: A Case of Missed Opportunity?,” in which she argued that in American society and jurisprudence there is “an embrace of lofty principles coupled with a simultaneous inability or unwillingness to undertake the messy work of devising and implementing effective solutions. … Instead of looking directly at the complex nature of discrimination and trying to devise effective solutions, the Court has elected to hide behind abstractions.”

A clarion call for a frank and forthright public discussion — as well as a commitment to substantive equality as opposed to merely formal equality — runs through all Jones’ scholarship. It also informs other initiatives she has undertaken at the Law School, including the Jean E. and Christine P. Mills Conversation Series on Race. The series, funded by Amos Mills III ’72, has brought prominent academics and activists — including professors John Hope Franklin and Charles Ogletree, and former ambassador to South Africa James Joseph — to the Law School to lead discussions on race and racism. “We are continuing the series in spring 2008 with a stellar line-up of academics who will address topics ranging from race and immigration reform to the influence (if any) of hip-hop culture on various forms of inequality,” she says.

A call for honest discussion also informs Jones’ teaching. In an orientation-week address, she challenged students to not merely celebrate diversity in the abstract, but also engage it on the ground, taking risks and reaching across boundaries to break down barriers of race, religion, gender, and class. “I invite you to venture beyond the invisible moat surrounding Duke University and to interact with the blue-collar and racially diverse community of Durham, to go to a synagogue with a friend, even if you are not Jewish, to attend a WLSA function, even if you are not a woman,” she told students.

“My late colleague and friend, Professor Jerome Culp, taught me to always remember that the law is ultimately about people. Behind every doctrine, every statute, every decision is a real person,” Jones observes. “At day’s end, I want the Court and those who are concerned about inequality to have an honest and informed conversation about what’s happening to people in our society — to people of color, to women, to gay and lesbian individuals, and poor people. Unless we actually acknowledge that racism, colorism, and other forms of discrimination exist — unless we acknowledge the problem of discrimination for what it is and look at its historical roots and the harm it has caused, we will not eradicate it in this country. If we have a frank conversation about inequality, we can come up with meaningful solutions.”