Tagged: Race

14

Affirmative Action and Merit

The Supreme Court is set next week to hear the affirmative action case of Fisher v. University of Texas at Austin. Many people are troubled by affirmative action because they are convinced that it means less qualified (non-white) students are admitted over more qualified (white) ones. To them, that just seems unfair. (One may wonder how it compares to the unfairness of a public education system that generally offers much better schooling to suburban (white) students.)

In any case, how reliable is their measurement of merit? As an initial matter, if diversity in itself is valuable, then the ability to add to it makes you more qualified then someone who cannot. Of course, what people usually have in mind are test scores, grades, and recommendations. Yet do the best grades and recommendations, for example, necessarily go to the best students? Studies on unconscious biases suggest the answer may be no. Take the most recent entry in a long series of studies revealing that identical qualifications are evaluated differently based on the race or sex of a candidate. In this randomized double-blind Yale study, science professors were asked to evaluate men’s and women’s resumes. The resumes were exactly the same except that some bore a man’s name (John) and some bore a woman’s (Jennifer). Both men and women rated the male candidates higher, and were willing to pay them more. Again, these were the exact same resumes. It is not a huge leap to think the same kind unconscious bias regularly occurs in classrooms across the country — and this is only one way that unconscious bias might lead to unfair assessments.

Granted, affirmative action may be a crude way to compensate for structural inequality and unconscious biases. But realistically, what are the alternatives?

13

Is “racial balance” always discriminatory?

In a recent case out of the Sixth Circuit, the court addressed the concept of “racial balance,” finding that an effort to achieve racial balance in disciplinary measures constitutes direct evidence of discrimination. While this is by no means the first case to deal with “racial balance” and discrimination, I am wondering: are all “racial balance” cases created equal?

In Ondricko v. MGM Grand, the plaintiff, a white woman, claimed reverse race discrimination (and sex discrimination) after she was fired from her job as a floor supervisor in the casino. Ondricko was ostensibly fired for participating in a “bad shuffle” at a blackjack table that she supervised. This type of incident is apparently not uncommon, and the court had at least six other similar incidents to compare involving white and black men and women who had engaged in similar conduct and whose discipline varied from several-day suspensions to terminations.

The “smoking gun” in this case is the interesting part. Four months before Ondricko’s incident, a black woman was terminated for her involvement in a similar incident involving unshuffled cards put into play. Around the time that supervisors were discussing the appropriate discipline for plaintiff, two managers had a conversation in which one noted that the black woman’s lawyers had called and wanted to know how the casino was going to handle Ondricko’s case (presumably because they viewed her as a similarly situated comparator). The other manager responded by saying, “do you think I wanted to fire [Ondricko], I didn’t want to fire [her], how could I keep the white girl?” The Sixth Circuit determined, based on this statement, that a reasonable jury could conclude that race was a motivating factor in the decision to terminate. “[I]t is certainly reasonable to conclude . . . that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.” In support of this proposition, the court cited another Sixth Circuit case involving a school board’s attempt to be racially balanced in the hiring of school employees. And that was essentially the end of the court’s analysis.

But Ondricko was not an affirmative action case nor was it a case about achieving racial balance in hiring. Instead, the case was about insuring racial balance in the employer’s discipline of its employees. The Sixth Circuit did not see a distinction between these two types of “racial balance” cases, but I think that is a flawed view. This case may not be the best example because the desire to mete out the same discipline across races was expressed in response to a call from a lawyer but what if that had not been the case? Although race is technically a motivating factor when an employer attempts to be “racially balanced” in its approach to disciplining employees, is that the type of case Title VII is intended to cover? Shouldn’t we, on some level, be encouraging employers to be mindful about race when meting out discipline and to insure that they are treating employees of all races the same? If they don’t, they risk disparate treatment claims for treating employees differently based on race. To call race a “motivating factor” in this type of case and not discuss the potentially legitimate reason for consideration of race seems to be a flawed or, at least, an incomplete analysis.

I think there is an analogy here to Ricci v. DeStefano, in which the Supreme Court recently concluded that an employer’s fear of disparate impact litigation is only a legitimate basis for intentional discrimination when the employer possesses a “strong basis in evidence” for believing that a valid disparate impact claim can be asserted. The Court in Ricci may have made my argument about Ondricko and racially balanced discipline more problematic, but I would be interested to hear others’ views on this issue.

 

0

Identity, Language, and Discrimination

As I mentioned in my prior post, I am thinking a lot right now about the intersection between identity and linguistic meaning as it impacts employment discrimination.  In my last post, I wrote about the Seventh Circuit’s view of the word “bitch” and its failure to mention the relevance of the gender identity of the speaker of that word when considering its contextual meaning.  I recently posted a draft of my article on this topic, “The N-Word at Work: Contextualizing Language in the Workplace,” on SSRN.  The article primarily deals with the “n-word” but makes the broader point that linguistic meaning is a product of numerous contextual factors including the racial, gender, religious, etc. identity of the speaker and listeners.

“The N-Word at Work” argues that there is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general.  For example, in American culture, it is a virtually universally accepted reality that a word, like the “n-word,” can have horrific or endearing meanings depending on the identity of the speaker and other contextual factors.  There is a striking difference between a white man using the word with his colleagues and a black man using it among his friends. But given Title VII’s prohibition of different treatment on the basis of race, the white man’s use of the term raises difficult questions about whether he can claim protection from discipline under Title VII’s reverse race discrimination jurisprudence.

Nonetheless, both the legal literature and judicial system have largely ignored this problem of language in discrimination cases.  Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases.  Despite this, the problem persists among appellate and district courts alike.

My article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed.  The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit.  Finally, the article suggests solutions to this seemingly intractable problem, including the need to (1) recall the purposes of anti-discrimination law and the permissible non-literal applications of that law, and (2) permit and encourage the use of extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.

Any comments on the topic in general and the solutions I offer would be helpful as I am currently revising the article and am working on my next project, which deals with the changing nature of identity and the “protected class” paradigm in discrimination law.

11

Diversity Day!

“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”

As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.

Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.

But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”

Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.

As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.

Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.

Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”

The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.

And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.

Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.

But perhaps an awkward commitment to justice is better than no commitment at all.

P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.

P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.

4

Henry Louis Gates and Black in Latin America: A Review

Harvard Professor Henry Louis, perhaps best known to most Americans for his run-in with a Cambridge Police Officer, than for his scholarly writings and academic entrepreneurship, is back on public television.  His television series is entitled Black in Latin America.  The name of the series is somewhat misleading since three of the countries he visits are on islands in the Caribbean, and a fourth, Mexico, also is not located on the Latin America continent.  Nevertheless, the series promised to be eye opening.  As one reviewer wrote, “When most U.S. citizens think of a Latino, they rarely picture someone black. This series broadens our understanding of the very complex identity of people from Spanish-speaking countries, an identity that is usually oversimplified into misleading racial stereotypes in the U.S. media.”  But here again, characterizing the series as about Spanish-speaking “Latinos” also is misleading since the series includes Brazil where the national language is a form of Portuguese and Haiti whose national language is a form of French.  So you are getting some idea of this subject’s complexity.

David Eltis and David Richardson in their wonderful book, Atlas of the Transatlantic Slave Trade (Yale Univ. Press 2010), map this trade in human chattel that lasted for 366 years “and resulted in the forced deportation of 12.5 million Africans to the New World.”  Black in Latin American briefly looks at the status of these unfortunate humans and their descendants now scattered throughout the islands and the Americas. There is, however, no mention of Central America where the Atlantic slave trade also distributed West Africans.  But this omission is not a criticism, the topic is simply huge.

The Atlantic region includes countries whose history of slavery pre-dates the U.S., and where slavery persisted in some places until the end of the nineteenth century.  Race in the Americas, especially Brazil and Cuba, is a topic that has long excited a small group of anthropologists, historians and sociologists.  Today, however, “Latin American” notions of race have more meaning to Americans because of our growing Hispanic, primarily Latino population, which on the surface celebrates its mestizaje (mixed racial culture) while papering over the racialized divisions within and among each community.  Latin America is a region, like the U.S., that, as a result of the slave trade, is equally bedeviled by race.

Over the years I’ve visited and studied about the construction of race in Cuba, Brazil and Mexico.  A few years back I even wrote an essay about Afro-Mexicans and Mexico’s hidden third root, its African heritage.  By looking at laws in Mexico during the seventeen, eighteen and early nineteenth century, the presence of Africans and their descendants is apparent.  Thus, I eagerly looked forward to this series. Read More

7

(A few reasons) why Angela Onwuachi-Willig should be appointed to the Iowa Supreme Court

Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

1

You’ve lost that Loving feeling

An incredible story in today’s news:

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.

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Knowledge of Jim Crow events: A quick, informal survey

I’m curious as to what level of knowledge people have of some important Jim Crow events. If you’ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.  Feel free to do so anonymously or pseudonymously.  I’m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense. Read More