Spring 1998, Volume XIII Number 2
Affirmative Action: A Dialogue on Race, Gender, Equality and Law in America
Why Race Matters
EDITORS (John Michael Eden and John Paul Ryan): Why does race continue to have so much cultural and social significance in the United States? What kind of significance [if any] should race have?
Glenn C. Loury (Boston University/Institute on Race and Social Division): It is not at all surprising to me that race remains salient in American political and social life. But for slavery and the system of racial caste associated with Jim Crow segregation, we might not be having this conversation. Those institutions were an historical reality, and the structure of ideas, customs and beliefs that surrounded them have left deep scars. As Nathan Glazer demonstrates in his recent book, We Are All Multiculturalists Now, between 1910 and 1930 there was a discourse on national integration in this country -- stimulated by the vast immigration from southern and eastern Europe -- in which the status of the Negro did not even arise as a topic for discussion. So alien were those Negroes from the body politic that even enlightened commentators like John Dewey could pose questions about the prospects for assimilation and national unity, without feeling obliged to give an account of where the blacks would fit into the picture. Well, in the quarter-century after World War II, the question of "where the blacks fit in" was indeed faced, and partially answered. We discovered "the true meaning of our creed," as Martin Luther King, Jr. put it. But, what we did not figure out, and have yet to resolve, is how we would deal with the social, economic, and political legacy left us by our ignoble past. In particular, we did not, and have not, faced the problem of how to repair the damage (psychological as well as material) done to (segments of) the black population by that past. And so, the issue of race remains.
Paul Finkelman (University of Akron School of Law): From the moment the first English met the first Indians, we have been a multi-racial society. English married native women and often adopted native children, teaching them to be "English." There was a high degree of intermarriage among black and white servants until the end of the 17th century. However, as slavery took hold and became associated with race, the lawmakers in Virginia and elsewhere tried to divide white and black laborers. So to fully understand race relations we must begin in the 17th century, with the development of slavery. The first blacks brought to mainland British colonies were not treated as slaves. They arrived in 1619 and were almost certainly treated as indentured servants. Some of them gained their freedom, a few became landowners, and at least one eventually owned some slaves. By the 1640s, however, the English in Virginia and Maryland were beginning to enslave Africans. By 1660 Virginia was beginning to adopt laws which regulated slavery.
Slavery at this time is confined to Blacks and Indians. Indian slavery was abandoned early-on, but African slavery expanded throughout the century. Initially, the English in Virginia had two justifications for slavery: first, that Africans were heathens, and thus justly enslaved because of their religious status; second, that the English were acquiring Africans who had already become slaves elsewhere, and because they were slaves under their own (African) law, the English did them no harm by keeping them as slaves. By the 1660s, however, some masters were beginning to baptize their slaves. Furthermore, the Church of England was pressuring most masters to do so. However, there was a general belief that baptism would lead to freedom. In 1667 the Virginia House of Burgesses adopted legislation declaring that baptism would not emancipate a slave. Thus, after the 1680s religion was no longer a justification for enslavement. Nor was enslavement in Africa a justification any longer for some slaves. By this time some slaves were American born. Indeed, in 1662 Virginia had adopted a rule that African-American children would follow the status of their mothers. The end result of these two laws was the racialization of slavery. Africans and African-Americans were legitimately enslaved, so the land barons of Virginia would now argue, because they were black. Even before they adopted these laws, Virginians had passed other laws to make distinctions between whites and blacks. A 1639 law, for example, required that all white male servants serve in the militia. Black were not required to serve in the militia, and by the end of the century they would be prohibited from serving.
Other early laws criminalized interracial marriage, prohibited free blacks from testifying against whites, and banned blacks from juries and voting. By the time of the Revolution, race and slavery were tied together. The Revolution caused a new wrinkle in the ideology of race and slavery. By asserting that "all men are created equal," the Declaration of Independence might have undermined slavery, but the primary author of that document - who owned more than 150 slaves at the time - also found a way out of the implications of his own words. In "Notes on the State of Virginia" Thomas Jefferson began to lay out the argument for scientific racism. He asserted that blacks were not as intelligent as whites, that they did not love like whites, that black men lusted after white women, and that they lacked foresight and were unable to write poetry or music. Most importantly of all, Jefferson gave his blessings to what would become the scientific racism of the 19th century while consistently opposing any rights for free blacks and refusing to support any measures to bring an end to slavery.
From 1800 until 1860 the U.S. political system was dominated by slave owners while scientific racism took hold in the universities and colleges. The clergy opposed scientific racism because it questioned the authority of the Bible, but instead developed a Biblical defense of slavery and racism. Other proslavery theorists defended the racial order, and slavery, through the use of economics, philosophy, history, anthropology, and political theory. All southerners, and many northerners, heard these arguments. The pro-slavery ideologies of the antebellum period did not end in 1865; they were simply shifted to explain the "proper" role of free blacks in America. As late as the 1950s serious university presses published books that purported to show the innate inferiority of blacks, while the clergy in much of the country continued to argue for racial separation. Thus, scientific racism and its counterpart -- Biblically-based racism -- were alive and well in much of the nation on the eve of the Civil Rights Revolution. Those who came of age before 1960 were taught these racial theories and many have neither forgotten them, nor wholly rejected them. Thus, we come to the late 20th century with a huge amount of cultural and intellectual baggage, all of which is geared to proving the inferiority of one race and the superiority of another. Despite the various Civil Rights Acts of the 1960s, we are still living in a world that was shaped by segregation and inequality. Thus, race has been the great question of this century, and every other American century.
Camille deJorna (University of Iowa Law School/Director of Admissions): Race continues to have cultural and social significance for African Americans, and other ethnic minorities, because we live with gaps in almost every category of life experience. Disparities in infant mortality rates, college enrollment and graduation rates, opportunities for employment and advancement, earning potential, mortgage lending practices, and life expectancy are still attributable to race. Race continues to matter because of these gaps in "quality of life measures."
Myths of justice are spun as acts of injustice unfold. Childhood is often portrayed in our culture as a "time of innocence." This is often short-lived in non-white communities. When my sons were little, there was a rash of tragic murders of Black youths by police. Boys were killed playing with toy guns. The officers believed the toys were loaded and lethal. My sons were not allowed to play with guns. I believed their lives were at risk playing simple childhood games. What's more, I considered explaining this to be a survival skill for being Black in America. Race mattered in this story. It defined my children's relationship to authority and to their claims on promises of justice.
I believe that the dreams of a color-blind society are earnest and sincere. Yet they fail to take into account that many still live lives where race determines where and how we live, how our children are taught, what kind of medical treatment we receive, and the extent and quality of our contacts with the criminal justice system. Hopes for equity demand that we continue to take race into account.
Jennifer Hochschild (Princeton University/Department of Politics): Is there a society, or has there ever been a major society, which does not discriminate according to some ascriptive characteristics, usually associated with skin color, whether real or imagined? Even if the answer is yes, that is, that there are occasional societies that do not make invidious "racial" distinctions, surely most do and always have. The British thought of the Irish as a separate race; the Tutsi and Hutu make racial and ethnic attributions in explaining their hatred, even though we can't see much difference; the Lilliputians in Jonathan Swift's Gulliver's Travels fought bitterly in factions known as the Big Endians and the Little Endians. My point is not meant to be a conservative claim that given the prevalence of racial or invented-racial strife, why bother worrying about it? My point is rather that we should stop looking for causes, since they are over-determined (economic dominance? political power? the psychological need to feel superior? cultural assumptions and beliefs? religious conviction? inertia of legal and institutional structures? - all of the above play a role in the U.S. and elsewhere, I'd guess). I think we should instead focus on solutions - that is, would we wish racial differentiation to be reduced or eliminated? Would that be possible without the subordinate race having simply to assimilate into the dominant race? Would we lose too much by flattening out racial distinctions? And then, how might we move toward whatever solution(s) we prefer?
Douglas Kmiec (Pepperdine University/Law School): Race matters in our own lives because we fear the unknown. We fear the stranger. We especially fear a stranger who doesn't look like us in the mirror. Race matters in the body politic because the severe economic and social deprivations of the not distant past yield an overrepresentation of minorities born out of wedlock without authentic and stable families and, therefore, more likely to be in the underclass, in prison or dependent on unhealthful substances. The deprivations of the past were sanctioned both culturally and legally. Presently, they are largely, if not entirely, cultural. A cultural problem is largely incapable of redress through law beyond the blunt proscription of non-discrimination. To allow race, as a matter of law, to continue to matter is to both reinforce cultural stereotype and subvert principles of equality that, however belatedly, need to be publicly recognized.
The most minimal classification under law requires a rational basis. Because race is a moral irrelevancy, insofar as it tells us nothing about a person's intelligence, integrity, or ability, it is irrational in the extreme to base public decision upon it. In private decision, some are called to observe a religiously-based preference for the poor or the less advantaged. Disadvantage, more than race - though they may, and do, still overlap - is an important factor in private decision making, subject to the constraints of the mission or function to be performed within particular jobs or organizations.
Donna Maeda (Occidental College/Department of Religious Studies): As Paul Finkelman suggests in his very helpful overview, "races" are constructed through various social and historical processes. Racial differentiations are constructed in relationship to each other and are structured into social institutions and meaning systems - in particular historical moments - based on economic, political, cultural, and other factors.
Social meanings of racial "differences" shift and change, outside of the control or intentions of any particular individual(s), yet are socially available for use. For example, although Chinese, Japanese, Koreans, Filipinos, Vietnamese, Samoans and others are now placed together in a racial classification, people of these different ethnicities historically have been set against each other, depending on labor needs, fears of the increasing ability of particular groups to organize, attributed ideas of "culture" regarding attitudes toward work, relations between the U.S. and the various nations of origin, etc. Meanings attached to "Asian American" (such as the "model minority" myth) are often constructed in relationship to meanings attached to other "races," such as African American and Latino/a categories. The constructed categories and attached meanings in turn act back in the realms of policy, institutions, and social analyses.
Richard Kahlenberg (Center for National Policy/Research Fellow): Very few people would argue that ethnicity should cease to be important in family and private life; life would become much less exciting if it did. But the question of whether ethnic identities should have public significance, particularly in the sense of whether people's life chances should be determined by their ethnic background, is a very different one; and for a brief time, there may have been a consensus that people's life chances should not be so determined. I think there is a legitimate and difficult debate over whether the history of racism compels us to make race significant, at least for a period of time, in order to remedy that history. Some argue that race must be taken into account affirmatively in order to address history; others say that the history of racism, and its continuing impact, are precisely the reasons we should avoid resorting to "the disease as cure" when we attempt to grapple with our history.
What I find more troubling is a third response to this question which began to emerge from the political left in the late 1970s -- that race should have significance in the public sphere from here on. This new argument, of course, goes beyond the old debate about whether we're "ready" to be colorblind yet; it questions the aspiration itself. For those in the academic world, this thinking has clearly won the day. But the theory that race should have permanent significance indetermining who shall receive benefits and burdens has its skeptics among the broader public. How else can we explain the fact that President Clinton, who has emerged as a fairly strong proponent of preferential race-based affirmative action, would nevertheless pay continuing tribute to the notion that at least eventually we should seek to minimize the significance of race?
In the State of the Union address this year, the President declared: "Often it's easier to believe that our differences matter more than what we have in common. It may be easier, but it is wrong." We must, he said, "build on our shared values." This language is more in keeping with John F. Kennedy and the racial liberalism of the early 1960s than the critical race theorists of the 1990s. And it attests to the staying power of the notion that - at least in the long run, and at least in the public sphere - race should decline in significance.
Glenn C. Loury: What I find odd is the expectation that race could, indeed, be made somehow into a matter of insignificance, given this history. Look at the prisons; look at the welfare rolls; consider the comparative intermarriage statistics (with Asian and Hispanic Americans intermarrying with white Anglos at vastly higher rates than blacks). Consider that there are important venues of power and influence in this society_corporate board rooms, elite professions - in which blacks have begun to participate only in the last generation. Consider that there are vast urban districts, peopled almost entirely by blacks and browns, where life has indeed become "nasty, brutish and short." Go to the emergency rooms of public hospitals where the poor seek their health care. A racial "coloration" is discernible in these places.
I understand the impulse to simply assert that the world would be a better place if race were an irrelevancy. I'm not sure whether I can say, as I would once have readily said, that race shouldn't be important - at least not when speaking about race consciousness among blacks. In addition, I find inadequate the formulation in which it is alleged that race can be important in private life, but should not matter to public decision making. How can the public decision making be truly effective (regarding, say, appointments to the courts in a state, or indeed, to the U.S. Supreme Court), if it is done without regard to race, when race remains deeply salient in the minds of private individuals? What I'm against here is the idea that a public focus on race is necessarily poisonous, while the private indulgence of racial sympathies is innocuous. Nor, in my view, is it the case that there exists some direct relationship between a heightened public cognizance of race, and the perpetuation of racial salience in private lives. The effect could go either way. Ignoring race in public decisions (by, for example, not attending to the racial representativenessof important public bodies) might only exacerbate peoples' attention to race in the private sphere.
Terry Swenson (The Colorado College/Dean of Admissions): Glenn Loury and Camille deJorna both made what would be my main point, that race remains significant because the legacy (the scars, as Camille put it) is still so much with us. While our nation has decided to leave this legacy behind, we find that doing so is complex and difficult. Every dean of admission I know can list many impressive programs in place to increase the enrollment of underrepresented minorities at his/her institution. We recognize the problem and we have the goal of integrating our campuses constantly before us, but the economic, cultural and educational realities of race in our society are real barriers. A staff member recently came into my office discouraged about the number of African American high school seniors in Colorado who have taken the sat and report a class rank of top 20% or better - I think the total was 92. This is not an excuse but rather a way to illustrate the simple reality that race continues to be significant because it remains too great a predictor of whether or not a person will have access to much that we value in our society (education, for example). In discussions on my campus, it is pretty clear that what we want is for race to matter in the way that other very important personal characteristics matter.
Robert Fullinwider (University of Maryland/Institute for Philosophy and Public Policy): Because "cultural and social significance" is ambiguous, I want to point to three different areas the question might indicate: (1) the public visibility of racial controversy, (2) the subjective significance of race; and (3) the objective significance of race. Episodes like Tawana Brawley, Rodney King, and the OJ trial get extensive news coverage and convey a sense of racial division. Similarly, policies like affirmative action that draw forth political contention and challenge set the tone of news coverage. If the Visitor from Mars were to draw conclusions about race relations in the United States based on his observation of the news, he would come to a fairly pessimistic conclusion, I would imagine.
By "subjective significance," I mean the felt experience of race or racial conflict; I mean one's personal sense of progress or lack of progress toward racial justice, equality, material improvement, and the like. The subjective significance of race is different for blacks and whites, as Andrew Hacker's Two Nations: Black And White, Separate, Hostile, Unequal has publicized. Blacks view the world through one kind of racial lens, whites another, so we are told. Indeed, it is the existence of these two lenses that gives form to those episodic controversies like the OJ trial - blacks on one side viewing OJ as the victim of rogue cops, whites on the other viewing him as guilty of murder. However, this simple story masks a lot of complexity. I would recommend to you the poll conducted in April of 1997 by the Joint Center for Political and Economic Studies on attitudes about race. It confirms what many similar polls have shown, that black and white perceptions of racial reality diverge in important ways. But when the findings are broken down by different categories, interesting patterns emerge. One, in particular, is age: young blacks and young whites are much more convergent in their attitudes, and diverge from their elders of both races. It is no easy matter to determine just how subjectively significant race is, but I do want to emphasize this point -- the direction in which subjective significance is moving may or may not track the public visibility of racial controversy.
Finally, we have the objective significance of race. Clearly, in many ways race is very much less socially significant objectively than it was two generations ago. The whole edifice of legal exclusion and separation has been dismantled, and we've had three decades of antidiscrimination policy directed at housing, voting, employment, schooling, public accommodations, and the like. This policy has had checkered success, but real success nevertheless. Yet various indicators still show gaps between blacks and whites in terms of health, income, school success, etc., even when you control for a lot of variables. Different folks can disagree over the objective measures, and over their upward or downward direction and rate, and over the satisfaction or dismay we ought to draw from them, but my point is that the direction of these measures need not parallel either the trends in subjective significance or public visibility of controversy. My own impressions are these: race is very much less objectively significant than it once was but still matters considerably; the subjective significance of race waxes and wanes but is more complicated on both sides of the race line than books like Hacker's would suggest; and that, given the nature of television, we can continue to expect various instances of theatrically-enhanced racial strife to play on our screens, but I do not think these episodes foretell, or even very much cause, the trends in the other two dimensions I've noted and explicated.
Spring 1998 Issue Home | Why Race Matters
Affirmative Action as Social and Legal Policy
Affirmative Action, Diversity and College Admissions
Gender, Race, and Affirmative Action
Reconceiving Merit | Affirmative Action in the Workplace
Constitutional Status of Affirmative Action
Book Recommendations | Contributors
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