Racial Exhaustion in the New York Times

Ross Douthat's op-ed on race, published in the New York Times, reads like a piece of science fiction. Although Douthat makes well worn arguments about the perils of affirmative action, his ultimate conclusion that class-based measures should replace race in social policy rests on a description of America's near future that is utter fantasy.

Racial Exhaustion
Douthat frames his essay around Justice O'Connor's opinion for the Court in a 2006 case that upheld the use of race-based affirmative action in higher education. Near the end of the opinion, O'Connor expresses a hope that in 25 years, affirmative action would be unnecessary. Douthat agrees with O'Connor's sentiment.

But that decision was not the first time the Supreme Court fantasized about the diminishing need for race-based public policy. The first judicial expression of this mistaken view occurred in an 1883 opinion that invalidated the first federal statute banning racial discrimination in places of public accommodation. In the face of dramatic racial inequality, the Court opined that ongoing measures to address racial inequality were no longer necessary and that these provisions were simply handouts that made blacks the "special favorites of the law."

Similarly, immediately after the Civil War, conservative members of Congress contested policies designed to provide food, shelter, and protection to the former slaves on the grounds that the war and the abolition of slavery had ended the nation's racial issues and that these policies harmed whites and made blacks lazy. Racial exhaustion rhetoric (see my recent law review article on the subject) has existed throughout the history of the United States. It is unclear why Douthat believes his plea for the end of race-based measures sits outside of this long history of racial denial.

Obama's and Sotomayor's America
Douthat notes that some critics have argued that Sonia Sotomayor's treatment by conservatives proves the salience of race in the United States. In response, Douthat asserts that:

[T]he [Republican] senators are yesterday’s men. The America of Jefferson Beauregard Sessions III is swiftly giving way to the America of Sonia Maria Sotomayor and Barack Hussein Obama.

And just where are all of these budding black presidents and wise Latina Supreme Court justices? According to Douthat, they are the inevitable consequence of population increases among persons of color and the likely nonwhite "national majority" by 2042. Numbers alone, however, do not translate into material well being or even political power (just ask South Africans -- or poor Latinos in Texas). And having a black President and a Latina on the Supreme Court does not mean that race has become socially irrelevant. Oprah Winfrey, a black woman, is one of the richest persons in the world. Under Douthat's individualized approach to the question of inequality, women of color should have indisputable economic power. Instead, they are the poorest segment of the United States population.

Furthermore, Sotomayor and Obama both benefited from affirmative action. According to Douthat, however, their great success disproves, rather than proves, the necessity of race-based affirmative action.

Race "or" Class
Douthat makes a valid point regarding the importance of class-based remedies. But the class proponents (Douthat is not the first) never justify their "either/or" formulation. Most sociological data on the subject, however, indicate that race and class both shape the experiences of the nation's poor persons of color. And while they would certainly benefit from economic policies (see William Julius Wilson's "When Work Disappears") the persistence of poverty among persons of color results from more than race or class alone.

The proponents of the class approach also ignore the significant public hostility to anti-poverty policies and the fact that "programs for the poor" often morph into "programs for lazy and undeserving blacks and Latinos" in public discourse. According to very popular political rhetoric, undeserving black and Latino "subprime" mortgage-holders singlehandedly caused the global economic and financial crisis. Also, "welfare" supposedly ruins the economy because it leads black women to have more children than they can afford, mistakenly believing that an extra 100 bucks a month is worth the hassle. Although most women who receive welfare are white, they are largely invisible in conservative discourse.

Even in the area of public education, where class-based policies could have a tremendous impact, the political will for egalitarian measures is not strong enough. For example, despite the inequities that result from using property taxes to fund public schools, most states continue to utilize this approach, which the Supreme Court validated in 1973.

The conditions in public schools also counsel against an approach that attempts to separate race from class. Public schools have become highly "resegregated" in the last decade. Schools that have largely black and Latino student populations are also "poverty schools," while schools with predominately white student populations are likely middle-class and higher-income schools. The race-poverty schools are grossly underfunded, are revolving doors for teachers, and they rank at the bottom in most measures of pupil success (This has nothing to do with the availability of affirmative action -- as conservatives falsely argue). Due to racial residential segregation, poor students of color are more likely than poor whites to attend poverty schools.

Nevertheless, in 2007, the Court invalidated policies in two school districts, which sought to remedy the harmful effects of resegregation. The majority held that the school assignment policies, which included an innocuous racial "tie-breaker" -- if a long list of other measures failed -- were too broad. The four most conservative justices argued that states did not even have a "compelling interest" in remedying racial isolation in public schools (despite all of the problems that correlate with it). The problem of racially isolated poverty schools is much more severe in "liberal" states in the Northeast, Midwest and West Coast -- despite those states having large populations of persons of color.

Conclusion
Although Douthat probably formed his views on the subject of race before Obama's election, he seems to read too much into the historical fact of the nation's first black president. He also fails to consider the substantive and political limits of a class-based approach to equality. Douthat also exaggerates the relevance of increasing numbers of persons of color to their overall well being. Accordingly, Douthat's vision of America's near future remains simply that: a vision.

No! "Gay Is Not the New Black," BUT. . . .

ESPN columnist LZ Granderson has published an essay on CNN.com that repudiates a slogan that has gained traction among (white) advocates of GLBT rights: "Gay is the new black." Granderson argues that most black gays and lesbians reject the sentiment underlying this phrase, which implies that GLBT people are marginalized like blacks "used" to be.

I have written numerous law review articles and blog entries on the subject of race and GLBT rights (see Google). Accordingly, I had a number of intellectual reactions to Granderson's essay when I first read it. Below, I have catalogued my primary reactions to his commentary. In sum, I find that his article makes some valid points, but Granderson fails to offer a useful and sophisticated analysis of the politics of race and sexual identity.

Gay Is Not the New Black
Although the slogan "gay is the new black" is relatively new, the sentiment it expresses is old. GLBT rights advocates have a long history of invoking racial justice and racism in their arguments. In many ways, legal culture encourages the comparisons of racism and heterosexism due to its fascination with precedent. Established doctrine compels lawyers to argue that courts should invalidate antigay policies because discrimination against GLBT people is sufficiently similar to racism.

This argument, however, ignores substantial differences between "GLBT people" and "blacks." Race and class advantage many GLBT people, while inherited inequality and ongoing discrimination continue to constrain persons of color. The analogies do not present this complexity. The comparisons also rest on a factually inaccurate assumption -- that "GLBT people" and "blacks" are distinct categories subject to comparison. Black GLBT people, however, shatter and fatally complicate this assumption.

The pitfalls associated with the analogies, however, do not doom the project of GLBT rights. Nonetheless, in their advocacy many GLBT activists and blacks refuse to acknowledge that homophobia and heterosexism warrant remedial action, notwithstanding the historical or contemporary experiences of blacks with racism. GLBT activists advance the troubling analogies to advocate gay rights, while blacks contest the analogies in order to dismiss gay rights. Despite their differences, both sides remain wedded to the analogies.

Civil rights by analogical reasoning is a bankrupt concept. Even today's blacks have not experienced the same type of racism as, say, slaves, but they still deserve civil rights protection. Holding GLBT people to a different standard is blatantly discriminatory.

The use of analogies in civil rights discourse unnecessarily limits civil rights protection to groups who have "the same" experiences as blacks (when no such group exists), which causes these groups to rely upon the misleading analogies. The analogies also rigidly portray civil rights as inapplicable to harmful social prejudices that do not mimic racism. Racism, however, is not the only form of oppression, and racism does not exist in a vacuum, detached from other types of discrimination. Granderson and other critics of the analogies never justify their narrow approach to equality.

Gay Is Not the New Black, BUT. . . .This Should Not Banish GLBT Rights to Obscurity
Even though gay is not the new black, this fact should not banish GLBT rights to obscurity. In addition, this observation cannot excuse or justify liberal politicians' inaction regarding or opposition to gay rights. This holds true even if the liberal politician is President Obama.

Granderson portrays GLBT criticism of Obama as coming almost exclusively from whites. Even if this were true (some blacks have indeed criticized Obama on GLBT issues), this does not mean that Obama has acted admirably on GLBT rights, and it does not disturb the fact that he has taken positions that differ from his campaign promises.

Obama created a lot of the excitement in the GLBT activist community with his numerous and sweeping campaign promises to undo blatant antigay discrimination encoded in federal law. But when Obama had his first opportunity to act consistently with his campaign promises, he took the exact opposite position and defended the Defense of Marriage Act as rational legislation -- despite his own assertion on the campaign trail that the law was unfair and that it should be repealed.

Although several commentators overreached in their criticism of the DOMA brief, the official governmental stance on the issue directly contradicts Obama's description of the law during his campaign. And while the Department of Justice normally defends the legality of existing federal law, Obama could have directed the lawyers to concede the issue (which he did in a subsequent case involving discrimination on the basis of gender identity). If Obama did not believe, perhaps reasonably, that defending DOMA would benefit him politically, he would not have done so.

Gay Is Not the New Black, BUT. . .This Does Not Excuse Black Homophobia or Inattention to GLBT Rights Among Liberal Politicians
Granderson's argument ignores the operation of black homophobia in the lives of black GLBT people. For example, he rightfully condemns white gay racism, but he suggests that this alone explains the existence of separate clubs and pride celebrations along the lines of race within GLBT communities. Although I agree with Granderson on the existence of racism within GLBT communities, racism alone cannot explain the popularity of separate black gay clubs and festivals. Black homophobia plays a role as well.

If the black community was a Utopia where black GLBT people could live their lives openly without fear of reprisal, then, applying Granderson's logic, these separate clubs would not exist apart from other black cultural institutions. This Utopia, however, does not exist. Black homophobia is an important social problem (just like white homophobia). Responding only to racism (but not homophobia, sexism and poverty) paints an incomplete picture.

Granderson also argues that some of Obama's critics seem impatient and unable to appreciate the fact that equality comes from sustained political activity. I agree. But part of this sustained activity must include open criticism, dissent and debate. Frederick Douglass, a leading black abolitionist, was invited to speak at the dedication of Washington, D.C.'s Lincoln Park, which is named in honor of the late President Lincoln. During his speech, Douglass called Lincoln a racist and said that he was a president to whites, not blacks. I suspect that he said even stronger things to Lincoln privately. Regardless, Obama's GLBT critics seem pretty soft in comparison.

Rather than asking GLBT advocates to tone down their criticism to mirror blacks (who largely remain exuberant regarding Obama), I encourage all progressives, including antiracist activists, to treat Obama as a president. His election is imbued with great symbolism, but this does not change the fact that he is a living, breathing politician who will only take risky and tough positions if he is pushed to do so. No progressive social movement in the United States has succeeded by giving politicians, including allies, a free pass. It seems highly unlikely that the GLBT and racial justice movements can defy these odds. Although social movement actors should act strategically, being strategic does not mean accepting complacency and silence.

Stonewall and Race
Finally, Granderson argues that the Stonewall Riots, which many GLBT activists mark as the the beginning of the "gay rights movement," only happened 40 years ago, but that blacks (by comparison) have struggled against racism for much longer. I agree with his assertion that the formal gay rights movement is "younger" than the antiracism movement in the United States. But to the extent that Granderson believes that antigay discrimination only began 40 years ago, his argument fails. Antigay discrimination predated Stonewall (as did pro-gay advocacy).

More importantly, Granderson fails to mention that a substantial number of the participants in the Stonewall Riots were poor people, people of color, and gender non-conforming men and women who were the most vulnerable to the police raids and other abuses. They were tired of waiting and enduring hostility in silence.

Although Stonewall was a moment of racial and gay activism, neither the black (heterosexual) community nor the (white) gay community seems to appreciate its complexity. While Granderson's article comes close to unveiling the richness of gay experience, his failure to confront black homophobia as well as white gay racism leaves many gaping holes in his analysis.

Update: The responses to Granderson are coming in, and the early count suggests that "we are not amused":

My answer to L.Z. Granderson - There should be no pride in comparing forms of oppression

ESPN's LZ Granderson Comments That Gay Isn't The New Black

Gays and Blacks Attempt to Compare Penis Size. Ruler Found Lacking. Jews Miffed About Not Being Invited to the Circle Jerk of Misery. « Trey Givens

Sigh

Pass the Smelling Salts: A Racial Divide Exists in the USA

Despite the incessant post-racial discourse of the last year, a recent poll by the New York Times suggests that a strong racial divide persists concerning social and political issues. For example, Obama's approval rating among blacks is 80%, while it is 49% among whites. 21% of whites have an unfavorable view of Obama; the unfavorable number among blacks is too tiny to measure. The Washington Examiner has more analysis and details.

A few comments
First, these numbers are somewhat misleading because they do not control for party affiliation. Most blacks are Democrats, and Obama's support among Democrats who are not black is very strong as well. Some liberal bloggers are using this fact to ridicule the Washington Examiner article, but this criticism does not change that fact that on many important social and political issues, a true racial divide exists. A similar pattern exists with gender as well.

Second, blacks are typically very cynical about politics and politicians, but Obama has certainly changed that. I am concerned, however, that blacks seem unwilling to accept a nuanced view of Obama. Any criticism seems to result in a smackdown (ask Tavis Smiley). I passionately believe that "approving" everything a president does will not advance racial justice, even if the president is black. Apparently, people have not learned to distinguish race from political ideology. While the two concepts are related, they are not the same.

More on the Man of Steele: Can the Unexpected Hip-Hopster Bring People of Color to the GOP?

Yesterday, Michael Steele's Washington Times interview caused even yours truly -- a staunch progressive -- to take notice. Steele's plan to market conservative ideology to black and Latino urbanites intrigued me, but it also left me doubting that he could accomplish this mission. Although many blacks embrace some socially conservative agendas (e.g., soft on gay rights), the vast majority of blacks have preferred Democratic candidates over Republicans since FDR.

Black Voters' Candidate Preference
I have always believed that if Steele (or anyone else with a magic wand) could make the GOP more moderate and take the party closer to its "Rockefeller Republican" days, then he could perhaps modestly broaden the party's base. The Republican Party was not always synonymous with social conservatism, and the Democratic Party did not begin to monopolize black votes until the 1930s. The Republican Party sided with slaves over slaveowners, fought to establish racial equality after the end of the Civil War, and embraced civil rights legislation in the 1960s.

The Democratic Party, by contrast, supported slavery and excluded blacks from participating in politics through a host of legislative schemes (not to mention violence and intimidation). And historically, the Democrats, not the Republicans, have led the country into expensive and deadly wars.

Large numbers of blacks moved away from the Republican Party to support FDR, who attracted over 70 percent of the black vote in 1936. Most Democratic presidential candidates have earned the same or a greater percentage of black votes since that time. There was one exception: Republican Dwight D. Eisenhower received nearly 40 percent of the black vote in his first election. Adlai Stevenson, his Democratic opponent, decided to run with a segregationist in order to win white votes in the South. The plan worked - but it cost him black support.

Despite the Roosevelt revolution, around 30 percent of black voters continued to support Republican candidates until 1964, the year Johnson sponsored important civil rights legislation. Since that time, no Republican presidential candidate has earned over 15 percent of black votes. McCain only received 4 percent. He also received only small percentages of Latino and Asian-American votes.

White Voting Patterns, the Southern Strategy and Social Conservatism
After Southern whites fled the Democratic Party in the 1960s, the GOP became increasingly more dependent upon socially conservative voters to win elections. By the time Ronald Reagan defeated Gerald Ford, the moderate wing of the Republican Party had lost much of its influence in defining the party's national political agenda. The party decided to supplant the moderates in order to capture the South's abundant electoral votes.

The "Southern strategy" produced amazing results for the GOP. Bill Clinton is the only two-term Democratic president since Truman. And until Obama's victory, Clinton and Carter were the only two Democrats to win the presidency since 1964. Furthermore, after 1964, no Democratic presidential candidate has won a majority of white votes. Obama did not reverse this trend -- despite the dreamy rhetoric among many pundits which suggests that his election demolished race-based political cleavages.

Advice for Steele: Be Consistent About Governmental Intervention and About "Equality"
Obama's election, party loyalty, and deep distrust of the GOP make Steele's effort to lure persons of color a difficult, if not impossible, task. It would take a great deal of courage, innovation, and reformulation of ideology in order to accomplish modestly this goal.

In order to do this, Steele will likely need to convince Republicans to challenge their rhetoric that seeks to reduce deep social problems to individual pathology. This is a favorite trump card. Every group has "bad" apples - but unless conservatives believe that the majority of blacks and Latinos are bad apples (which is a conversation stopper), then they must remain open to other explanations for and solutions to prolonged inequity across social groups. Conservatives often blame the government for incentivizing people to choose poverty (and this still passes the laugh test), but this is just the extreme opposite of the notion that only governmental solutions can work. Room exists for both approaches.

Governmental Intervention
While many conservatives passionately reject any role for government in reducing class and other types of inequity, they readily invite the government into areas of other people's lives in order to regulate personal choices that seem patently inappropriate for governmental intrusion (and certainly inappropriate for a governmental veto). Many social conservatives, for example, vehemently insist that the government alone should decide the conditions under which a woman terminates a pregnancy. They also want the government to dictate whether or not terminally ill patients continue to receive life-sustaining medical treatment against their family members' or their own wishes. Conservatives have supported making criminals out of people who consent to intimate relationships (sexual or otherwise) with people of the same sex. And they believe that government-waged "wars" can reduce or rid society of drugs, kidnappings, sexual predators, violence, and terrorism.

If the government can accomplish all of these things better than "the people," then just maybe the government can do a few things to create conditions in which all people can have economic autonomy and opportunity. Favoring governmental intervention in order to police people, rather than to foster individual autonomy seems far removed from conservatism.

Social Equality
If Republicans want to broaden their base, they could fill the hole left by Democrats, who have not proposed solutions for substantive inequality -- by which I mean, actually doing something about the conditions of inequality such as poverty, homelessness, unequal schools, etc., rather than simply cheering the party's "diversity."

Conservative discourse already espouses the virtues of equality. When conservatives oppose affirmative action, for example, they do so by invoking the language of "equality." Conservatives presumably value racial equality so greatly that they view university admissions policies that dole out a few "points" to students of color in their applications as being the moral equivalent of the brutal regime of Jim Crow. If this is true, then this principle should lead them to at least the same degree of outrage concerning the detrimental effects of sending black, Latino and many poor white kids to vastly underfunded or racially isolated "poverty schools" (where a majority of the students qualify for "free lunch").

Blaming the children and their families for being locked into these suboptimal conditions contradicts conservative opposition to affirmative action. Instead of telling whites who challenge affirmative action to "suck it up" or accusing them of promoting socialism, conservatives criticize the government for treating people differently (even if only to a small degree).

Final Word
Unless conservatives begin to demand equality of opportunity in all settings and consistently remain open to the possibility of governmental and private solutions, then they will fail to expand their base to include people of color. Of course, I cannot demand that Republicans do these things when the "liberal" party has failed to do so or has done so inconsistently. But it's fun to dream. Also, unless the GOP can top the Democrats, then many people of color will just stay with the familiar.

So, Steele: if you can fit my long rant into a neat conservative package, put a ribbon on it, and sell it to Republicans, then you will have in fact done something "off the hook." Apparently, a "new school" of Republicans catapulted Steele to leadership. Maybe this will give him a chance to shake things up. Good luck!