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Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law

Published online by Cambridge University Press:  06 March 2019

Kimberle Williams Crenshaw

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In 1984, President Reagan signed a bill that created the Martin Luther King, Jr. Federal Holiday Commission. The Commission was charged with the responsibility of issuing guidelines for states and localities to follow in preparing their observances of Martin Luther King's birthday. The Commission's task would not be easy. Although King's birthday had come to symbolize the massive social movement that grew out of efforts of African-Americans to end the long history of racial oppression in America, the first official observance of the holiday would take place in the face of at least two disturbing obstacles: first, a constant, if not increasing, socioeconomic disparity between the races, and second, a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress.

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Articles
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German Law Journal , Volume 12 , Issue 1: Critical Legal Thought: An American-German Debate—Republication [with a new Introduction] Twenty-Five Years Later — , 01 January 2011 , pp. 247 - 284
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Copyright © 2011 by German Law Journal GbR 

References

1 Continuing disparities exist between African-Americans and whites in virtually every measurable category. In 1986, the African-American poverty rate stood at 31%, compared with 11% for whites. See Williams, Urban League Says Blacks Suffered Loss over Decade, N.A. Times, A10, Column I (Jan. 15, 1988). “Black median income is 57 percent that of whites, a decline of about four percentage points since the early 1970's”. Bernstein, 20 Years After the Kerner Report: Three Societies, All Separate, N.Y. Times, B8, Column 2 (Feb. 29, 1988). Between 1981 and 1985, Black unemployment averages 17%, compared to 7,3% for whites. See National Urban League, The State of Black America15 (1986). In 1986, approximately 44% of all Black children lived in poverty. See Lauter & May, A Saga of Triumph, a Return to Poverty: Black Middle Class Has Grown but Poor Multiply, L.A. Times, Section 1, 15, Column 1 (April 2, 1988). Blacks comprise sixty percent of the urban underclass in the United States. Id., 16, Column 3.Google Scholar

The African-American socioeconomic position in American society has actually declined in the last two decades. Average annual family income for African-Americans dropped 9% from the 1970's to the 1980's. See William, supra, A10, Column 1. Since 1969, the proportion of Black men between 25 and 55 earning less than $5000 a year rose from 8% to 20%. See Lauter & May, supra. African-American enrolment in universities and colleges is also on the decline. See William, supra, A10, Column 2.Google Scholar

The decline in the African-American Socioeconomic position has been paralleled by an increase in overt racial hostility. See generally, U.S. Comm'n on Civil Rights, Intimidation and Violence: Racial and Religious Bigotry in America (1983). In addition to well publicized incidents of racial violence like the Howard Beach attack, see Note, Combatting Racial Violence: A Legislative Proposal, 101 Harv. L. Rev. 1270, 1270 & n.1 (1988); infra, note 32, and a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress. A focus on the continuing disparities between Blacks and whites might call, not for celebration, but for strident criticism of America's failure to make good on its promise of racial equality. Yet such criticism would overlook the progress that has been made, progress which the holiday itself represents. The Commission apparently resolved this dilemma by calling for a celebration of progress toward racial equality while urging continued commitment to this ideal. This effort to reconcile the celebration of an ideal with conditions that bespeak its continuing denial was given the ironic, but altogether appropriate title “Living the Dream”. The “Living the Dream” directive aptly illustrates Professor Derrick Bell's2 observation that “[m]ost Americans, black and white, view the civil rights crusade as a long, slow, but always upward pull that must, given the basic precepts of the country and the commitment of its people to equality and liberty, eventually end in the full enjoyment by blacks of all rights and privileges of citizenship enjoyed by whites”. the lynching of Michael Donald, see racial unrest has risen dramatically on university campuses in Follow-Up on the News: Paying Damages for Lynching, N.Y. Times, Section 1, 45, Column 1 (Feb. 21, 1988). See Wilkerson, Campus Blacks Feel Racism's Nuances, N.Y. Times, Section 1, 1, Column 3 (April 17, 1988).Google Scholar

For a comprehensive analysis of the conditions afflicting the Black urban underclass, see W. Wilson, The Truly Disadvantages: The Inner City, The Underclass, and Public Policy (1987).Google Scholar

2 Race, Racism and American Law (2nd ed. 1981).Google Scholar

3 Thomas Sowell William Morrow, Civil Rights: Rhetoric or Reality? (1984).Google Scholar

4 The problem of remedying race-neutral practices that perpetuate the effects of past racial subordination policies provides an acute demonstration of how legal reform has failed to resolve conflicts between restrictive and expansive views of discrimination. For example, in opposition to the Civil Rights Act's declared purpose - restoring victims of discrimination “to a position where they would have been were it not for the unlawful discrimination” -Section 703(h) provides protection to “bona fide” seniority systems, thereby introducing opposing status quo interests within the very statute committed to bringing about the end of racial subordination. Compared to Conference Report of the Equal Employment Opportunity Act of 1972, 118 Cong. Rec. 7166, 7168 (March 6, 1972) (stating that the Act would “represent a vital step toward the realization of equal opportunity for millions of Americans”) with 42 U.S.C. Section 2000e-2(h) (1982) (“Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system.”). Protection of bona fide seniority systems was inserted to win labor support for the bill, see Chambers & Goldstein, Title VII at Twenty: The Continuing Challenge, 1 labor lawyer (lab. Law.) 235, 248 n.66 (1985); Murphy, W., Discrimination in Employment 168 (4th ed. 1979); the definition of bona fide was left unclear and was the subject of repeated litigation. Nevertheless, it was clear from the beginning that this protection for seniority systems provided a barrier against the complete remedying of racial inequality. The Supreme Court has resisted efforts to overcome the last hired, first fired problem. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).Google Scholar

In many cases where Section 703(h) was at issue, the question was raised whether facially neutral seniority systems that perpetuated the effects of past discrimination were bona fide. This issue arose in situations where employers had completely segregated and subordinated Black workers in company job lines so that the lowest white job paid more than even the highest-ranking Black job. Competitive seniority for all jobs was based on departmental seniority rather than on plant-wide seniority. After 1964, many companies merged their two job progressions; however, the department seniority rule still stood. Consequently, the most senior Black workers could not successfully bid for jobs in the previously all-white job progression. Plaintiffs in these cases argued that the seniority systems perpetuated past discrimination against Blacks.Google Scholar

Prior to 1977, at least sic circuit courts of appeals held that courts could remedy the effects of past discrimination by requiring that jobs be filled on the basis of plant-wide rather than departmental seniority, and that seniority systems which perpetuated the effects of past discrimination could not be considered “bona fide”. This view diverged sharply from the approach suggested by unions and employers, who argued that because the Act was intended to apply prospectively, neutral practices that perpetuated the effects of past discrimination were acceptable under Section 702(h). Courts, however, failed to extend the logic of their holdings, rejecting as unfair to white workers the theory that restoring Blacks to their rightful places would require employers to grant Blacks the jobs denied them. See, e.g., Quarles v. Philip Morris Inc., 279 F. Supp. 505 (E.D. Va. 1968). Rather than bump whites who had received their jobs because of discrimination, courts merely allowed senior Blacks to compete for the next available vacancies. See id., 520-21.Google Scholar

In 1977, however, the Supreme Court upset even this dubious compromise, holding in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), that Congress intended to protect all facially neutral seniority rights regardless of the discriminatory effect on Black workers. In so holding, the Court rejected the government's contention that no seniority system that perpetuated pre-Act discrimination could be bona fide under Section 703(h). See id., 353. Teamsters represents a move toward a more restrictive view of discrimination in which the objective of eradicating racial subordination is limited by competing interests. As the various opinions concerning seniority suggest, interpretation of Section 703(h) boils down to a choice of which interest will take priority: the achievement of racial equality, or the protection of interests founded in the policies of white supremacy. Simply but, the issue was whether Black hopes of overcoming racial subordination would prevail over, or be defeated by, the status quo.Google Scholar

5 Twenty Years of Title VII Law: An Overview (April 18, 1985) (unpublished manuscript on file in the Harvard Law Library).Google Scholar

6 See Reeves, America's Choice: What It Means, N.Y. Times Magazine, Section 6, 36, Columns 4-5 (Nov. 4, 1984) (quoting John Seigenthaler, editor of The Tennessean: “I think white Americans have reached a consensus on black America. Look, we've done enough for them. If they can make it, fine. If they can't, that's their problem.”).Google Scholar

Reviewing the results of several opinion surveys, one author has concluded that most white Americans believe that racism can no longer explain the socioeconomic disparity between Blacks and whites and that socioeconomic disparities were largely a result of Blacks’ lacking either effort, skills, or the “right values.” See Kluegel, “If There Isn't a Problem, You Don't Need a Solution “: The Bases of Contemporary Affirmative Action Attitudes, 28 American Behavioral Scientist (Am. Behav. Scientist) 761, 766 (1985). Kluegel further points out that, to the extent whites in this study did acknowledge “some” discrimination in the 1980's, they tended to believe it occurred in roughly equal proportions to preferential treatment. This, combined with other responses, led Kluegel to conclude that the American public believes that Black enjoy opportunities that are equal to or greater than those of the average American. See id., 769.Google Scholar

7 See generally, A. Gramsci, Selections from the Prison Notebooks (Q. Hoare and G. Smith transl. 1971).Google Scholar

8 New Developments in Legal Theory, in The Politics of law: A Progressive Critique 281 (Kairys, D. ed. 1982).Google Scholar

9 Antidiscrimination Law: A Critical Review, in The Politics of Law, supra, note 8, 96.Google Scholar

10 An Essay on Rights, 62 Texas Law Review (Tex. L. Rev.) 1363 (1984).Google Scholar

11 Gabel and Duncan Kennedy, Roll over Beethoven, 36 Standard Law Review (Stan. L. Rev.) 1, 29 (1984).Google Scholar

12 The term “coercion” is used here to describe all non-consensual forms of domination - that is, all forces external to the individual or group that maintain that individual or group's position in society's hierarchy. As such, it refers to everything from baton-wielding police officers to court injunctions to “White Only” signs. More importantly, it also refers to more subtle forms of exterior domination, such as the institutionalized oppositional dynamic - the vision of “normative whiteness” that pervades current forms of race consciousness. See infra, Part D.Google Scholar

13 The 1984 Jesse Jackson presidential campaign may serve as a case in point. Most whites dismissed Jackson's positions as simply “special interest” or, more accurately, “pro-Black.” To many whites, “pro-Black” translates to “anti-white,” even though Jackson's policies might have benefited most whites much more than the policies of the white candidates whom most whites supported. For example, Jackson supported using from a reduced military budget to provide employment to the growing number of displaced industrial workers.Google Scholar

14 One must acknowledge that the shortcomings in Gordon's arguments reflect real gaps in the Gramscian thought upon which much of the discussion of hegemony has been based. Gramsci was preoccupied with developing a better approach to understanding domination by consent - a fact which leads many scholars who use his concepts to focus on consent to the virtual exclusion of coercion. Also, Gordon's discussion of the law must be considered in light of the fact that Gramsci himself wrote very little on the law; exactly two pages in the Prison Notebooks address law directly. Finally, and most importantly, Gramsci was not concerned with the impact of race and slavery in America, and consequently wrote nothing about it. At least one Gramscian scholar cautions that his narrow understanding of race and slavery undermines some attempts to utilize fully his concepts in the American context. See C. Boogs, Gramsci's Marxism, 132 n. 20 (1976).Google Scholar

15 Poor People's Movement (1977).Google Scholar

16 The observation concerning the inability to bring about change in some non-legitimating fashion does not, of course, rule out the possibility of armed revolution. For most oppressed peoples, however, the costs of such a revolt are often too great. That is, the oppressed cannot realistically hope to overcome the “coercive” components of hegemony. More importantly, it is not clear that such a struggle, although superficially a clear radical challenge to the coercive force of the status quo, would be a lesser reinforcement of the ideology of American society (i.e., the consensual components of hegemony).Google Scholar

17 Conversely, groups that do not engage the institutional logic are unlikely to create such a crisis; indeed, they are routinely infiltrated, isolated, and destroyed. Compare, for example, the history of the NAACP with that of the Black Panthers. One should not infer from the fact that the Panthers have ceased to exist whereas the NAACP has not that insurgent groups are not essential to reform. Indeed, it is their insurgency that ultimately benefits more moderate groups. Both moderate and radical groups, however, face similar limitations. Although they can create a crisis which forces an institutional response, no oppressed group can control the response. Institutions can respond with either repression or conciliation; often they respond with both. Thus, even enlisting the dominant, legitimating ideology in struggle does not guarantee protection against violent repression.Google Scholar

Indeed, the degree of violence and repression than an oppressed group must endure to wrest even moderate reforms from the dominant class is a measure of its subordinate status in society. Consider, for example, how much real suffering people had to endure during the civil rights movement before even moderate concessions were made. The injustice of racial oppression is succinctly characterized by the fact that thousands of lives were risked, and some lost, to secure for Blacks the most basic rights that whites were routinely granted. See Raines, H., My Soul Is Rested, 190-93 (1977) (quoting Willie Bolden, a participant in the struggle for voting rights, as he described police beatings of marchers occurring inside and around a church in Marion County, resulting in more than twenty hospitalizations and the death of Jimmy Jackson); id., 197-226 (describing “Bloody Sunday,” on which mounted Alabama state troopers attempted to thwart a march on Selma, by riding into the crowd, and beating and tear gassing the marchers, many of whom were kneeling); J. William, Eyes on the Price, 230-35 (1987) (describing the discovery of the bodies of James Chaney, Andrew Goodman, and Michael Schwerner, civil rights workers executed by Klansmen in June 1964).Google Scholar

18 See generally, D. Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (1975); Fredrickson, G., The Black Image in the White Mind, 1817-1914 (1971) [hereinafter G. Fredrickson, The Black Image]; Jordan, W., White over Black: American Attitudes Toward the Negro, 1550-1813 (1968); Newby, I., Jim Crow's Defense: Anti-Negro Thought in America 1900-1930 (1968); Williamson, J., The Crucible of Race: Black/White Relations in the American South since Emancipation (1984).Google Scholar

19 The notion of Blacks as a subordinated “other” in Western culture has been a major theme in scholarship exploring the cultural and sociological structure of racism. See Trost, Western Metaphysical Dualism as an Element in Racism, in Cultural Bases of Racism and Group Oppression, 49 (J. Hodge, D. Struckmann & Trost, L. eds. 1975) (arguing that Black and white are seen as paired antinomies, and that there is a hierarchy within the antinomies, with Caucasians and Western culture constituting the preferred or higher antinomy). Frantz Fanon has summarized the attitude of the West toward Blackness as a projection of Western anxiety concerning the “other” in terms of skin color: “In Europe, the black man is the symbol of Evil … The torturer is the black man, Satan is black, one talks of shadow, when one is dirty one is black - whether one is thinking of physical dirtiness or moral dirtiness. it would be astonishing, if the trouble were taken to bring them all together, to see the vast number of expressions that make the black man the equivalent of sin. In Europe, whether concretely or symbolically, the black man stand for the bad side of the character. As long as one cannot understand this fact one is doomed to talk in circles about the “black problem.” Blackness, darkness, shadow, shades, night, the labyrinths of the earth, abysmal depths, blacken someone's reputation; and on the other side, the bright look of innocence, the white dove of peace, magical, heavenly light,” F. Fanon, Black Skin, White Masks, 188-89 (1967). See S. Gilman, Difference and Pathology: Stereotypes of Sexuality, Race, and Madness, 30 (1985) (arguing that the notion that “blacks are the antithesis of the mirage of whiteness, the ideal of European aesthetic values, strikes the reader as an extension of some ‘real', perceived difference to which the qualities of ‘good’ and ‘bad’ have been erroneously applied. But the very concept of color is a quality of Otherness, not of reality.”); Isaacs, Blackness and Whiteness, Encounter, 8 (Aug. 1963); see also Jordan, W., supra, note 147 (discussing how 16th and 17th century English writers used the concept that Blacks were the Europeans’ polar opposites to establish an elaborate hierarchy to classify other colored people in the world). Others who have used the concept of “otherness” as a framework for examining Black/white relations include C. Degler, Neither Black nor White: Slavery and Race Relations in Brazil and the United States (1971), and Copeland, The Negro as a Contrast Conception, in Race Relations and the Race Problem: A Definition and an Analysis, 152-79 (Thompson, E. ed. 1939).Google Scholar

20 Dissemination VIII (B. Johnson trans. 1981).Google Scholar

21 Morgan, E., American Slavery - American Freedom (1975).Google Scholar

22 Frederickson, George M., White Supremacy: A Comparative Study in American and South African History (1981).Google Scholar

23 Woodward, C. Van, The Strange Career of Jim Crow (1955).Google Scholar

24 Race and Ethnicity in Organized Labor: The Historical Sources of Resistance to Affirmative Action, 12 Journal of Intergroup Relations (J. Intergroup Rel.) 5 (1984).Google Scholar

25 Race and Realignment in American Politics (1985) (unpublished manuscript available in Harvard Law School Library).Google Scholar

26 That there were Black professionals indicates that Black educational achievement was not always inferior. Howard University Law School, for example, is legendary for producing the brilliant Black attorneys who shaped the legal campaign for racial equality, and for producing the first Black Supreme Court Justice. Thomas Sowell makes much of the fact that students from Washington's Dunbar High excelled in a number of fields. See Thomas Sowell, Black Education: Myths and Tragedies, 282-86 (1972).Google Scholar

27 Socially, many Blacks lived in a society that was comparable in many way to that of the white elites. Hardly strangers to debutante balls, country clubs, and vacations abroad, these Blacks lived lives of which many whites only dreamed. Nevertheless, despite their material wealth, upper-middle class Blacks were still members of a subordinated group. Where rights and privileges were distributed on the basis of race, even a distinguished African-American had to take a back seat to each white - no matter how poor, ignorant, or uneducated the white might be. See generally, Edward Franklin Frazier, Black Bourgeoisie: The Rise of a New Middle Class in the United States (1957).Google Scholar

28 Minow, The Supreme Court, 1986 Term-Foreword: Justice Engendered, 101 Harv. L. Rev. 10, 32 (1987).Google Scholar

29 By “collectivity”, If refer to the recognition of common interests and the benefits derived by Blacks of all classes in sharing the burdens of social struggle. The potential for collective struggle is maximized where the grievance is shared by all. It was clear that racial segregation, for example, affected all Blacks. The creation of opportunity for some Blacks - however small the number may be - can obscure the degree to which Blacks have common interests that warrant continual collective struggle. One of the unfortunate consequences of viewing racism solely in terms of economic class is that it may create the impression that there are few common interests that Blacks share across class lines. Although the emergence of a new and outspoken class of Black neoconservatives may confirm this consequence, political opinion surveys indicate the Black political opinions are not so tightly bounded by class lines as those of whites. See Gilliam, Black America: Divided by Class?, Public Opinion, 53-57 (Feb.-Mar. 1986).Google Scholar

30 The embrace of the self-definition “African-American” can symbolize the ongoing effort to break free of the subordinate self-identity brought by exclusive reference to a white norm.Google Scholar

31 Femia, Joseph v., Gramsci's Political Thought: Hegemony, Consciousness, and the Revolutionary Process, 51 (1981).Google Scholar

32 Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 666 (1983).Google Scholar