Spring 1998, Volume XIII Number 2 Affirmative Action: A Dialogue on Race, Gender, Equality and Law in America Gender, Race and Affirmative Action Editors: Has affirmative action been more successful in helping to achieve gender equality than racial equality? Donna Maeda: On the one hand, it's possible to say that affirmative action has been more effective in undermining gender inequalities than racial ones. I'm of course not the first to notice this, but people with social power often become supportive of anti-discrimination policies like affirmative action when they see their daughters being denied opportunities. People's familial relationships (which do not always cross racial lines) can often make the realities of the experience of gender discrimination more immediate and compelling. It's interesting to note that before the vote on Prop. 209 in California, strategists opposing the proposition had many "discussions" about whether to focus on either gender or both gender and race. Many people thought that drawing attention to the possibilities that Clause C would undermine programs directed toward gender equality would be more widely effective than talking about race. Discussions about strategy clearly indicated that there was widespread agreement that "society's" ability to confront race still lagged way behind the commitment to end gender inequality. On the other hand, it can be problematic to split gender and race as two separate social categories. One of the limitations in the way that affirmative action has worked is the lack of attention to intersections of gender, race, and class. Thus, women of color are often invisible in analyses of the impact or effectiveness of affirmative action and, even more importantly, in the development of policies and programs that work against systemic social hierarchies. This is the tragedy of the current state of discussion about affirmative action. Rather than improving on our ability to confront the complex ways that gender, race, and class structure society, we often turn backward to older either/or, pro/con debates. Douglas Kmiec: Affirmative action has very little to do with gender equality. Gender equality has everything to do with cultural change. Culturally, since the second world war, we have recognized that it is possible (though far from easy) to run a domestic household with both spouses in the marketplace. The jury is still out as to the consequences of this for the direction of children, the long-term health of marriages, and the general happiness of the individual. As intelligent, fully capable members of the society before and after this culture shift, women have always been major contributors. Before the culture shift, the majority of women (and a not insignificant minority of them today) made enormous full-time contributions to the family, performed highly significant community and charitable work, and advanced the civility of men. Now those same enormous talents go toward Supreme Court briefs, open heart surgery, fiscal analysis, marketing reports, and still-super-humanly-greatly to the family. Efforts to civilize the male members of the republic is spotty, and even more troubling, more extensive exposure to some of the male participants in the market has reduced the civility of some women. Meanwhile, men, by and large, continue to direct most (though not all) of their efforts to Supreme Court briefs, open heart surgery, fiscal analysis, and marketing reports, while allocating the reserve to the family. This seems, and I bet is, culturally unstable, and the most sensible women in professional or graduate study are rightly anxious about it, even as their male counterparts are largely obtuse to it all. Practically, seldom is a diversity rationale necessary to increase the number of women within organizations any more. Fundamentally, schools and employers can simply look for the most qualified person, and given the large pool of well prepared women available, it is not difficult to find them. And even when the law has allowed an underrepresentation theory to support female over male promotion, even that theory is more related to past exclusion (viz. discrimination) than claims for racial diversity. There can be tension, of course, between female and racial opportunity. For instance, much attention is presently focused on the case of Yvette Farmer, a white female sociologist first passed over, but then hired and paid substantially less, by unlv. The university gave as its defense to Yvette Farmer's equal pay act claim that it was pursuing racial diversity. The Supreme Court of Nevada without hardly any analysis accepted this. In so doing, the state court used an irrelevant criterion (race) to justify discrimination on another (gender). Jennifer Hochschild: In universities, affirmative action has worked much better regarding gender equality than regarding racial equality. In some other organizations and occupations, notably the military, affirmative action has worked much better for racial than for gender equality. On balance, women (mainly white women) are doing pretty well in universities. More women than men get a b.a., I think; in elite schools well over 40% and sometimes up to 50% of admits are women (up from 0% in some schools two decades ago); women are slowly moving toward equality with men in hiring and promotion as faculty in universities. I see many reasons for this. On balance, blacks (both men and women) are doing better regarding attaining higher education than their parents' generation did, but of course there are lots of reasons for that. However, given that they still get lower sat's than do whites with comparable incomes, and given that incomes mostly are not comparable across races and given that on balance more blacks than whites go to lousy high schools, fewer blacks (of both genders) than (white) women get admitted to the best universities. I mean this in a relative and an absolute sense. There are simply fewer blacks (of both genders) than (white) women to be in the pool of potential admits/hires. Conversely, look at the Army (or fire departments, police departments, construction sites, etc.) For a variety of reasons, black men have been incorporated relatively successfully (very successfully, in the case of the Army) into the rank and file of these organizations, and they are making their way up the promotion ladders slowly but still with discernible movement. And of course in professional football, baseball, and other sports, affirmative action (loosely defined) is spectacularly successful for black men and nonexistent for women of any race (except in female-only leagues). On balance, in circumstances that involve a lot of close physical and emotional connection, racial barriers turn out to be easier to overcome than gender barriers do. Conversely, in circumstances that involve more cognitive and stylistic connection, gender barriers have turned out to be easier to overcome. Camille deJorna: I suppose if we looked at relative participation rates, we would probably agree that women have enjoyed greater success and mobility than minorities over the last 30 years. Though, according to the U.S. Department of Labor's Glass Ceiling Commission women still remain severely underrepresented in most non-traditional professional occupations, as well as blue collar trades. We're under no legal obligation in higher education to take proactive steps in admissions with regard to gender. More interesting to me is, as Donna Maeda has suggested, paying attention to intersections of race, gender, class, age, physical ability and sexual preference. According to feminist scholars, these reflect the real differences in women's experiences. Angela Harris criticizes the notion that there is a "unitary, essential women's experience that can be isolated and described independent of other realities." The status of women of color, for example, may differ in their own groups than in white society. For example, my own identity as a black feminist was forged in college when I realized that women of color like white women were denied the vote until 1920, even though northern black men of property could vote. Paul Finkelman: It seems to me that from the beginning of the nation, 1776, the discrimination against white women has always been of a very different nature than that against blacks. White women were not enslaved, never lynched for trying to vote, and even when denied political rights, had certain other rights afforded them. I doubt very much that Jefferson thought he was including blacks in "all men are created equal." But, he did think his two daughters should have "life, liberty and pursuit of happiness," although not political rights. Ever since then, however much inequality white women faced, it was tempered by the paternalistic desire of white men to protect their daughters' interests. Similarly, there was a paternalistic interest that led white men to support married women's property acts in the 19th century. Similarly, in the 19th and 20th century higher education was available to white women if they were middle class because paternalism demanded it. This experience of course was quite different for all blacks. White middle class (or upper class) women have been able to take advantage of affirmative action in ways that blacks cannot, at least in higher education, as Jennifer Hochschild points out. Much of this is class based. Since blacks have been, for the most part, cut out of the middle class, they have lacked resources available to white women. Thus, I would suggest that the starting point for affirmative action for white women is quite different than for blacks, and so the opportunity to achieve has been greater. White women own great amounts of wealth, and of course many wealthy white men have daughters who benefit from their class background, as well as their relationships to white men. This is mostly not true for blacks. None of this of course goes to the glass ceiling, nor does it deal with sexual harassment. And in traditionally "male" institutions-as Jennifer notes, like the police department, fire department, and the military-it is probably the case the gender is more important than race. But, in the academic world and in most professions, it may be that white women bring, in general, advantages to the table that minorities simply do not have. Jennifer Hochschild: I think we will not get very far by arguing whether race is a bigger handicap than white femalehood, or whether female gender has more impact on one's life chances, or whether the real issue lies in the intersection of femaleness and blackness. The main point is that each of these conditions has its own distinct handicaps and advantages, and affirmative action will therefore play out differently in each case. For white women, class is less of a concern (for many although not all), and race is obviously not a concern-but the complexities of family constraints and norms about proper roles are very difficult to overcome. Thus, affirmative action may be important in order to ensure that white women are taken seriously, and that they are able to get jobs given the pressures to follow their husband. For black men, class and race are issues but the norm of working full time for pay is not a problem. Thus, affirmative action is important for them not to get them into the full time labor force, but to move them from the labor force into jobs that they deserve. For black women, class and race are obviously issues, as are gender norms and roles-but employers report being more eager to hire black women than black men, and sometimes more than white women. Thus, affirmative action is important for them to offset the multiple disadvantages of class, race, and gender, but it is perhaps less important than for white women in relation to roles and norms and less important than for black men in relation to stereotypes of competence and collegiality. So affirmative action seems necessary for different reasons for the three groups. It will probably work better for different groups in different circumstances. It is probably less necessary at this point for white women than it used to be, but I would insist that it was essential in the 1970s and 1980s to get the process of changing norms and roles jumpstarted. Glenn C. Loury: I had thought not to speak further in this conversation, but Jennifer provokes me. Let me agree that arguments over "comparative victimology"-which "group" has suffered the most, whose claims should be prior-are typically not productive. The logic of coalition politics, and the sheer psychological obstinacy of those who have suffered, militate against such debates generating much light. However, it is possible to make distinctions about the causal mechanisms at work in producing the quality of life enjoyed by the members of various population aggregates; and, it is possible to bring objective data to bear regarding the issue of quality of life. My position is that dramatic contrasts can be drawn between the implications of historic and ongoing discrimination by race and by gender. Children grow up in families. When the resources available to those families are meager, the children's life chances are diminished. Men and women grow up in the same families. Whatever the differential character of the experiences of boys and girls in their families, no one can suggest that this disparity is comparable-in terms of its impact on life chances-to the disparities associated with the legacy of racial oppression. One-third of black children are raised in poverty. Three-fifths grow up in single-parent homes, and one-tenth live with neither parent. Whereas, the quality of the schools attended by boys and girls is indistinguishable, the quality of schools attended by blacks and whites differs greatly. Financial resources are shared within families. Computation of earnings or wealth differences between men and women, regarded as gender-defined classes, give an inaccurate picture of the functional disparity in access to resources as between men and women, because such computations neglect the reality that economic benefits are freely shared across gender lines within households. Such resource sharing does not occur across racial lines. The white men who control the various professions in which we all work are, by and large, sympathetic to the claims of women. They are married to the people making those claims; they see in their daughters future beneficiaries of a more gender-open order. By and large, these white men do not respond with a similar, intimacy-grounded, empathy to the claims of blacks. In my profession, academic economics, the number of women has gone from essentially zero, to one-third of most graduate school classes at top universities, and one-quarter of tenure track appointments. The combined number of black and Hispanic Americans awarded PhD's in the U.S. in recent years has hovered in the neighborhood of 20 (out of about 1,000 degrees granted). Moreover, efforts to increase this number are greeted with suspicion, and concern about the lowering of standards. The bottom line is this: the objective extent of racial inequality is vastly greater than is the extent of gender inequality; the movement toward more egalitarian arrangements has been much more rapid and complete for gender than for race; the legitimacy enjoyed by claims on behalf of inclusion for women is measurably greater in almost all the venues that count than is the standing of race-based claims; and, the extent to which access to venues of power and influence in our society will be adversely affected by the demise of affirmative action is vastly greater with respect to blacks than with respect to women. Richard Kahlenberg: I fully agree with Glenn Loury that women face very real obstacles, but fewer than those faced by blacks, for all the reasons he cites. But why not take this analysis one step further? It is a tragedy that one-third of black children grow up in poverty. But of course 100% of poor kids grow up in poverty. Too many black kids attend bad schools, but the percentage of poor kids attending bad schools is even higher. Virtually all of the evidence Professor Loury cites to support his contention that blacks are more disadvantaged than women are economic in character: wealth, earnings, access to health care, etc. The discrimination faced by people of color and women is very real; and I think we need strong medicine to address it. I think there should be far greater resources put behind enforcement of laws forbidding disparate treatment (Civil Rights Act of 1964) and disparate impact (Civil Rights Act of 1991). But if affirmative action is to be a tool to address the bedrock issue Glenn Loury cites-"life chances"-then I think it must go beyond addressing the issue of discrimination to the more complicated problems of deprivation. Paul Finkelman: I think that race remains the problem that our society seems unable to overcome. Yes, it is true that poverty leads to poor education and poor life chances. But, poor whites can become middle class whites or at least steadily employed working class whites. I think in many ways the class argument may explain much about poor schools, likelihood of being a victim of a violent crime, or even likelihood of being a criminal. That goes to the issues of why minorities are more likely to be less prepared for college or graduate school than whites; and that is part of the argument for affirmative action. But, beyond that, there is the racism. Today I had two students, independently, tell me they chose a historically black college because their experience with white teachers in integrated urban schools was so painful. These are middle class (one is very upper middle class) blacks who felt discrimination in high school from white teachers and fellow students. That is not a class problem. 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 Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues