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Guilt by Acquisition, Should today's
stockholders pay the price of a corporation's past
sins? By Steven E. Landsburg, Posted Friday, Jan. 8, 1999, at 12:30 AM
When the German car maker Daimler-Benz announced plans to
acquire a controlling share of Chrysler Corp., Jewish novelist Cynthia
Ozick announced in the Wall Street Journal that she would never
buy a Chrysler. Other Jews (some of whom would never buy a
Chrysler because they'd only ever buy a Mercedes) saw the issue
very differently. Last May, shortly after the merger was announced,
the Jewish Bulletin carried an article by Natalie Weinstein surveying
the range of opinion, particularly among Holocaust survivors. The
responses ran the predictable gamut. Some agreed with Ozick. But
others, such as Rabbi Ted Alexander, took their cues from
Deuteronomy, which admonishes that "Fathers shall not be put to
death for children, neither shall children be put to death for fathers."
"Going by that verse of the Torah," said the rabbi, "I cannot blame
this generation."
The rabbi's analogy treats the Daimler-Benz of 1998 as the "child" of the Daimler-Benz that employed
slave laborers in 1943. From a strictly legal perspective, the analogy is inaccurate: Under the law, a
corporation lives forever. The entity that controls Chrysler is exactly the same entity that collaborated with
the Nazis, not a descendant.
But it would be wrong to view an essentially moral question from a strictly legal perspective. A corporation
is not a moral entity; it's the corporation's flesh and blood owners who are moral entities. From that
perspective, the rabbi's analogy fails in a different way: The current owners of Daimler-Benz are not, by
and large, the children of previous owners from half a century ago. Stocks trade hands every day.
That observation seems to strengthen Alexander's position. If we should not punish children for the sins
of their fathers, then surely we should not punish children for the sins of their fathers' countrymen. But
that analysis can be definitive only to those who believe that nothing can be added to the words of
Deuteronomy; otherwise there's more to be said.
When is it permissible to punish one person for the wrongs of another? The question is a tangle of moral
and economic issues. Morally, we're concerned with things such as justice, fairness, and individual rights.
Economically, we're concerned with creating good incentives.
To see how uncomfortable it can be when economic and moral issues brush up against each other,
consider the revision of accident law that's been proposed by the economist-iconoclast-law professor
David Friedman. Friedman suggests that when two cars collide causing a total of, say, $10,000 worth of
damage, everyone who was within a mile of the accident should be required to pay a fine of $10,000.
That way, anyone who sees an accident about to happen will take all cost-justified measures to prevent it
(perhaps by honking furiously to warn of impending danger). To my knowledge, Friedman's proposal has
never struck anyone as fair, but at least it gets the incentives right.
Or does it? My own view is that the Friedman plan fails even by its own strictly economic criteria, because
it creates an incentive for people to avoid high-accident areas and take inefficiently long routes to
wherever they're going--or to cancel their trips entirely. In principle, it could even increase the accident
rate by scaring potential good Samaritans off the roads. Enforcement, of course, would be a nightmare.
Those objections aside, Friedman's proposal does illustrate the tension between economic and moral
considerations. And Friedman's innocent bystanders are at least partly analogous to Daimler-Benz's
innocent stockholders. Let's keep those lessons in the back of our minds as we revisit the
DaimlerChrysler controversy.
Corporations can be punished for misdeeds in at least two ways. One is a consumer boycott and another
is a (voluntary or involuntary) fine. Both kinds of punishment have been visited on Daimler-Benz (though
arguably at levels that are small compared with the underlying offenses). In the 1980s, the corporation
paid about $11 million to the descendants of its slave laborers.
Who exactly suffers from those punishments? You might think the $11 million came from the pockets of
those who owned Daimler-Benz stock in the 1980s, but that's not necessarily the case. Suppose, for the
sake of argument, that in 1950 it becomes foreseeable that Daimler-Benz will eventually make
reparations. Then every share of Daimler-Benz stock sold between 1950 and 1980 sells at a discount
reflecting that expectation. Without the discount, nobody would buy the stock. So given sufficient
foresight, the prospect of a 1980 punishment hurts the 1950 owners, even if they sell in the interim. And
those who buy stocks after 1950 are not punished at all, because the discount compensates them for the
Therefore, if all companies are permanently on notice that bad behavior will eventually be punished, they
have an incentive to behave well at all times. That's an outcome that seems both fair and economically
efficient: The punishment falls on the sinners and thereby deters the sin. But here are two caveats:
First, even if punishment is inevitable, it falls not on the owners at the time when the sin is committed, but
on the owners at the time when the sin is discovered. After all, it's not till the discovery that the stock price
falls. So punishing past corporate sins is not like fining everyone who was present when an accident
occurred, but when it was reported, which seems both unfair and pointless. But this caveat has a
countercaveat: The prospect of future punishments gives you an incentive to investigate the corporation's
history before you buy, which improves the chance that bad behavior can be uncovered while the actual
perpetrators can still be punished.
Second, it's hard to maintain a consumer boycott, especially when the goal is to punish the past rather
than to influence the future. Consumers can quite reasonably argue that history can't be changed and so
is best forgotten. As a result, corporations have little to fear from boycotts unless consumers commit
themselves to maintaining the boycotts even when they serve no purpose. It's hard to imagine how such
commitments might be maintained, which suggests that fines are more effective than boycotts, especially
if they are written into law rather than imposed on an ad hoc basis.
If you're looking for a firm conclusion to all this, you'll have to look elsewhere; I hope I've at least
illuminated some of the attendant moral and economic issues--though even these can become very
different in situations that are superficially similar. (Click here for an example.)
And punishing evil corporations is very different from punishing evil governments. In the first case, we
punish stockholders who invested voluntarily, while in the second we punish taxpayers who might have
bitterly opposed their government's policies. But that is a topic for another column.
Man, I Throw Like a Woman, The Supreme Court explores the
subtleties of sex and basketball.
By Dahlia Lithwick, Posted Tuesday, Nov. 30, 2004, at 3:35 PM PT
Talk about taking one for the team. …
Roderick Jackson bitched to his bosses about the second-class
treatment accorded the girls' basketball team he coached at Ensley
High School in Birmingham, Ala. Banished from the school's new
gym, Jackson's team practiced in an unheated, rickety facility where
its hoops literally drooped from age. When Jackson's bosses fired
him, he filed suit under Title IX, a federal sex discrimination statute.
The district court and then the 11th Circuit Court of Appeals rejected
his claim that being fired for protesting gender discrimination itself
constitutes an act of gender discrimination for which he was entitled to
sue under Title IX.
Title IX of the Education Amendments of 1972 bars gender discrimination in educational and other
programs receiving federal funds and permits the government to stop funding entities engaging in sex
discrimination. In a 1979 case, Cannon v. University of Chicago, the Supreme Court held that victims of
sex discrimination also had a private right to sue under Title IX. The question for the Supreme Court
today is whether Title IX additionally created a private cause of action for people who were fired for
complaining about sex discrimination against others. The court will decide whether the statute covers
whistle-blowers or just victims.
Walter Dellinger (whom I know and edit) represents Jackson, and he argues this morning that it does no
good to protect teenage athletes in a vacuum. "People like Coach Jackson need to come forward," he
argues. "Students are minors, they don't know about budgets." Justice Antonin Scalia points out that the
civil rights statutes that sought to protect against retaliatory firings "expressly provide for that." It's not
logical to infer that Congress intended for the word "discrimination" to also include "retaliation" unless
Congress explicitly said so. Dellinger responds that Title IX is identical to Title VI, which has long been
understood to include retaliation in its definition of discrimination.
Quoting the statute, Scalia says he can't see where Coach Jackson was "on the basis of sex … excluded
from participation in … denied the benefits of, or … subjected to discrimination under any education
program." He asks whether that "even remotely describes" Jackson's experience.
Justice Anthony Kennedy notes that the '60s are so over: "This is not the heyday of private causes of
action anymore." And Scalia objects to adding a new list of possible lawsuits to beleaguered school
boards: "When the states signed on," he says, "they couldn't know this door to litigation was being
opened to them." Dellinger counters that there is "no way that when the school districts accepted these
[federal] funds, they thought they'd be free to retaliate."
Justice Sandra Day O'Connor, who will likely be the deciding vote in this case, asks whether Jackson
availed himself of the administrative remedy available to him under Title IX before trying to sue own his
own behalf. David Souter rephrases that question as: "Why do we need a private cause of action and not
just this administrative remedy? Is the administrative remedy too draconian?" The justices confirm that
termination of federal funding for schools based on Title IX violations are rare. At which time Scalia points
out that maybe Title IX works "because the sanctions are so draconian. No one in their right minds
wouldn't rehire a coach" if faced with a withdrawal of federal funds.
Irving Gornstein is an assistant to the solicitor general, and he argues for 10 minutes on Coach Jackson's
side of the case. Many oral advocates have accidentally called Justice Ginsburg "O'Connor" over the
years. Gornstein calls O'Connor "Justice Kennedy" this morning, thus proving that the two swing justices
are merging inexorably into one great fungible Justice of Goo. Gornstein points out that in 1969 in
Sullivan v. Little Hunting Park, the Supreme Court found that the statutory ban on racial discrimination
encompassed retaliation and that Congress was well aware of the Sullivan rule when it passed Title IX in
Scalia asks wryly, "Do you think we take the same approach to implied causes of action today that we
took in 1969?" He rejects the idea that "we'd go skipping along forever as we did in 1969." Bong in one
hand, bong in the other. … And O'Connor reminds him that "Mr. Jackson was not discriminated against
because of his gender." Gornstein replies that any "person who is victimized by retaliation because he
complained about sex discrimination is a victim of sex discrimination."
The Birmingham Board of Education is represented by Kenneth Thomas, whose accent makes Dellinger's
soft Carolina drawl sound Brooklynesque. Thomas opens with the claim that when there's a Title IX
complaint, the Office for Civil Rights swoops in, and then there's hell to pay at school. "We know about
OCR. They're in Atlanta, 167 miles away," he says. "And when they come, they come. …" Thomas goes
on to argue that a private cause of action under Title IX offers no benefits to the team itself: "With a
private suit, the award goes only to the coach," he says. "Nothing would go to benefit the girls' basketball
Souter asks what Thomas makes of the fact that Title IX's administrative remedies are almost never
deployed. How can it possibly be working? "On my watch," drawls Thomas, "the No. 1 priority is to keep
OCR out."
Souter persists. "Unless we allow whistle-blowers to bring a private right of action, this whole statute is a
dead letter." Thomas replies that in Birmingham "we are very conscientious about the administration of
our programs." " 'Trust me' is not an answer," snaps Ginsburg, "when you are telling a sixth-grader she
can't play on a team."
In perhaps the single greatest moment of the 2005 term, Justice Stephen Breyer then interrupts Thomas
to inquire: "Can I ask you a legal question?"
He goes on to offer a vintage Breyeresque three-part hypothetical, devoting at least five minutes to
getting Thomas to concede that he must inevitably lose this case. To which Thomas finally responds with,
"Justice Breyer, on the face of the statute, I just can't get there. I apologize."
In response to a question from O'Connor, Thomas begins to cite a case that the Supreme Court declined
to hear. O'Connor interrupts him: "You don't base your argument on giving some legal effect to a denial of
certiorari?" she asks.
And Ginsburg sums up Dellinger's side of the case again by urging that "[i]f we are talking about a sixthgrade soccer team, the only person who knows enough and is brave enough to complain is the
teacher. … [I]f you cut the teacher out, forget it. [Title IX] is just nice words on paper." Thomas replies,
"The teacher can call OCR."
Ginsburg says, "And OCR says we're too busy." Scalia asks whether we know OCR is routinely too busy
to intervene. Thomas says, "I have firsthand knowledge." Ginsburg snaps again, "Is that your personal
"Yes," says Thomas. Ginsburg then asks how many Title IX complaints he has fielded over the years.
"Two," says Thomas. "In 20 years." Then he adds, "But they were all memorable."
State Solicitor General Kevin Newsom gets 10 more minutes to speak in support of the Board of
Education. He immediately sets out to correct the justices' assumption that "without a private right of
action, whistle-blowers are left out in the cold." He urges that OCR has a lot of remedies beyond just
yanking funding, and it's precisely this threat of yanking that can result in "individualized relief." He adds
the "threat" of denying funds "is where the heavy lifting is done."
This will be a close case, turning on whether the judges can know the unknowable: whether the vast
sucking noise behind Title IX in this case is the result of its utter uselessness or its function as the perfect
deterrent. Since the court can't precisely answer that question, it may be forced to answer the next best
one: whether the only man truly able to stand up for womankind is always going to be a woman.
How not to stifle a racist.
The California Supreme Court may have been
well-meaning when it banned racial slurs in a hostile workplace, but in the process it
damaged the Bill of Rights. By Debra Dickerson
Aug. 16, 1999 | If you happen to be an employer, a First Amendment absolutist or a trash-talking loser,
life became a bit more difficult last week.
That's because the California Supreme Court forbade the future use of racial slurs in a workplace that has
already been found by a court to be a hostile environment and likely to remain so.
While the decision is not binding outside of California, or on the federal courts, it is extremely significant
nonetheless. Until now, a racist's worst nightmare was being penalized for his past behavior, but now he
can be legally muzzled to prevent his invective from spewing forth in the first place.
As early as 1991, Avis service agent John Lawrence allegedly began informing his Latino subordinates
that they were "wetbacks," "motherfuckers" and "crooks" and routinely demeaning their English language
skills, among his many other insults.
Seventeen of them took Avis and Lawrence, who denies the allegations, to court. In 1995, a jury found in
the workers' favor, awarding eight of them a total of $150,000 in damages. In addition, Judge Carlos Bea
enjoined Lawrence (who still has his job) from engaging in further such speech, and enjoined Avis from
allowing him to.
Avis appealed its injunction, citing the First Amendment and both the U.S. and California constitutions'
prohibitions against prior restraint on speech. The 4-3 decision last week, which generated five separate
opinions (the plurality decision written by Chief Justice Ronald George, a separate, more radical
concurrence and one from each of the dissenters), is controversial, to put it mildly.
While courts have addressed the issue of workplace harassment many times and assessed damages
after the fact, this is the first time one has taken the logical next step and enjoined the future use of
offensive language.
Legal experts say the decision is very narrowly tailored because it addresses only racial slurs, not
religious proselytizing, sexual remarks or political statements. It also applies only after illegal employment
discrimination (i.e. the existence of a hostile environment) has been found by a court of law.
Narrow, shmarrow. When it comes to America, race and the Constitution, there's just no such thing as
narrow. Emotions run so high, we're always either teetering on the abyss of tyranny or singing in a
heavenly choir of angels, depending on your politics, and this case is no different.
In her dissent, the court's most outspoken conservative, Justice Janice Rogers, blasted the decision: "A
government that tells its citizens what they may say will soon be dictating what they may think."
Amazingly, Rogers was joined in dissent by two stalwart liberal bedfellows, Justices Stanley Mosk and
Joyce Kennard.
Our hallowed freedom of speech has never been absolute. You can't yell "fire" in a crowded theater
(although you may think it), solicit bribes, make terrorist threats, slander another, intentionally inflict
emotional distress or be "obscene" (whatever that means).
So, if speech has always been limited and the speech at issue is not constitutionally protected (because
the plaintiffs are not free to walk away), why is this such a big deal? After all, as Justice George wrote,
"The order simply precluded defendants from continuing their unlawful activity."
Well, one reason it's a big deal is that the unlawful activity likely only seems easy to identify and outlaw.
The state Supreme Court upheld the Court of Appeals requirement that Judge Bea promulgate a list of
the proscribed words that Lawrence may not utter.
This is ludicrous. What if Bea forgets one? Is it "spic" or "spick"? Lawrence could easily coin nonsense
words to convey his contempt for Hispanics, speak with a Jose Jimenez accent, refuse to address them
directly or get a buddy to say the words for him. Maybe he is just smart and evil enough to switch from
harassing "wetbacks" to the "gooks" or "kikes."
If so, it could take another five years of court proceedings to stifle the bum.
Also, the fact that the court deemed Lawrence's bailiwick a hostile environment a few years ago doesn't
mean it must always be so. Avis could install cameras and tape recorders to keep Lawrence honest.
Given the turnover in minimum wage operations like rental car counters and the publicity attendant upon
this case, it's entirely possible that the atmosphere could radically change at Avis with a few new hires.
Justice Mosk wrote, "Like my colleagues, I abhor discrimination in any form. But I feel equally strongly
that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to
whom, and with what effect."
Kennard elaborates on the over-broad nature of the ruling, writing that it would outlaw "every utterance of
a racial or ethnic insult in the workplace, not just utterances that actually produce a hostile work
Isolated slurs do not a hostile environment make. So if that environment is the source of the illegality and
the basis for the injunction, then it is highly relevant that it might no longer exist.
Silly as it is to have a learned jurist drawing up his own George Carlinesque list of dirty words that may
not be uttered, and dangerous as chipping away at the First Amendment is, it's still a touching gesture.
Reading the voluminous, much-footnoted decision, I'm struck once again by how hard we struggle to find
solutions to our racial conundrums in this country -- affirmative action, busing, minority scholarships,
constant litigation and legislation, suburban white boys talking like homeboys.
We should be proud of ourselves. But we should also be realistic. Sometimes, there just isn't a litigated,
legislated, law-based answer to our problems. Sometimes, we just have to stand by, helpless and
frustrated, while someone like John Lawrence or Buford Furrow takes advantage of the freedoms that are
so wasted on people like them. If the Constitution, and especially the Bill of Rights, is to mean anything,
then sometimes, we just have to suppress the urge to implement solutions that may be even worse than
the problems they are meant to address.
Instead, here's a radical suggestion: What if the plaintiffs in the Avis case are encouraged to simply laugh
in Lawrence's face every time he says something offensive? The last time someone called me a nigger,
he did so with such a look of vicious triumph on his face -- as if he expected me to melt right into the
pavement at the power of that evil word -- that I couldn't help myself: I laughed.
"What, I'm not a 'bitch' too?" I found myself quipping. All of a sudden, I thought the idiot was going to cry.
He was the one who felt crushed. Avis workers, listen up: If John Lawrence acts like an amoeba, treat
him like one.
Certainly, there's a real difference between being a powerless manual laborer working at a crap job who
also has to listen to slurs from his boss all day and being a Joe Cool journalist called a name by a
homeless beggar I stiffed, but the bottom line is the same. Once you've done all you can do (like win a
mega-lawsuit) you just have to accept that you've done all you can do. If Lawrence doesn't stop and Avis
doesn't fire him, then the plaintiffs either have to refile their lawsuit, quit or turn the other cheek.
Laws are made for honest people, my mother always told me, and idiots have the same consitutional
protections as the rest of us. We probably can't stop the haters from hating, but even if there are ways to
stop the John Lawrences and the Buford Furrows, undermining the Constitution shouldn't be one of them. | Aug. 16, 1999
The Jordan Effect:
What's race got to do with it?
BY LEON E. WYNTER | For African-Americans, "black" has always been an absolute adjective: Like
"pregnant" or "dead," there's no such thing as a little bit. Expressions such as, "I ain't gotta do nothing but
be black and die," phrases that begin, "As long as you black ..." confirm black folks' awareness that the
racial attitudes behind the "one drop" rule laid down in the 19th century by the Supreme Court are as
immutable and eternal as the biblical creation. Since the 17th century, it has seemed that white people
must hold black people firmly at arm's length for the world to keep on turning.
Then enter, as he was exiting two weeks ago, Michael Jordan's legacy to American culture: the "Jordan
The expression was coined in Fortune magazine last summer, when it estimated the economic impact of
the basketball star's persona(s) to be $10 billion over his 14-year career. In the recent gush of
appreciation over his Airness, Jordan's race was conspicuously absent, except as a footnote to the
"Jordan Effect." As the editor of one upcoming Jordan book said on National Public Radio, before Jordan,
"There was a line between black athletes and entertainers and corporate America; Jordan has erased
that line."
Say what? Isn't that the same indelible "color line" that Justice Taney drew in Plessy vs. Ferguson? The
line that was looped around so many black necks for even looking at a white woman in the Jim Crow
South? The line that W.E.B. DuBois recognized and immortalized in the 1950s and Derrick Bell told us to
embrace and get on with our lives in the '90s?
I think you can knock black America over with a feather every time it hears that the color line has gone
away because non-blacks don't see Michael Jordan or Oprah Winfrey as black. White people, who
presumably think this colorblindness is a good thing, seem unaware that a great many black folks are
unconvinced, if not insulted, by such white pronouncements, safely uttered from living rooms in their white
Indeed, the most striking feature of race relations as we enter our fifth century together is the widening
schism between race as it is depicted in commercial popular culture and race in sociopolitical reality.
When I, a 6-foot-7 black man with a slight resemblance to his Airness, enter the car of a commuter train to
the suburbs on a Friday evening, I feel some momentary stares that seem to ask, "Hey, we're not on the
subway anymore -- what's he doing here?" Yet most of the passengers will go home and spend the
weekend immersed in commercial media that aggressively reflects the browning of America. They'll watch
television dramas whose census of lead characters, according to a recent Screen Actors Guild report, is
disproportionately black. Or they will soak up professional team sports whose rosters are overwhelmingly
non-white. Or they will catch their favorite trash TV talk shows, featuring a multiracial mudfest where race
recedes before more important issues like "just when did you stop sleeping with your sister?"
In between watching black or Hispanic detectives track down the bad guys, the suburbanites will be
motivated to excess consumption by a burgeoning cast of non-whites in commercials. In Madison
Avenue's world, white people will cheerfully let a black man push them out of an airplane just to catch up
with a diet cola. Besides names like Jordan, Bill Cosby, Shaquille O'Neal and Vanessa Williams,
commercials are increasingly filled with non-white non-celebrities, whose presence as Everyman in
general market commercials was rare to unheard of as recently as 1990.
And what's up with that mob of third world extras that have suddenly become fixtures in campaigns for
high-tech firms like Cisco Systems, Lotus and IBM? The very people suburbanites are loathe to see on
their train are pouring out in their living rooms to scare them into compliance with the digital world order
with a simple haunting question: "Are you ready?"
The answer, to the bigger question of whether society has really erased the color line, is "no, not yet."
There is a disconnect between the multi-hued American dream portrayed in the media and America's stillblanched social reality. Whites have not begun to examine the hypocrisy that may lie beneath their
colorblindness toward a Michael Jordan. But African-Americans, too, aren't prepared for the possibility
that where commercial popular culture goes, social and political culture must follow.
In their new book, "By The Color of Our Skin: The Illusion of Integration and the Reality of Race" (Dutton),
Leonard Steinhorn and Barbara Diggs-Brown argue that today's "virtually integrated" television "merely
enables whites to live in a world with blacks without having to do so in fact ... a form of safe intimacy
without any of the risks." As a columnist who writes about such things, I've had endless debates with
people of all colors who agree with the authors that the racial utopia depicted in commercial media is
It's true that the rainbow world promised by advertising isn't here yet. But virtual integration is still leading
us toward actual integration. Virtual integration may be risk-free intimacy, but it's still intimacy. Virtual
integration is exploding because it sells -- and it sells because it fortifies our deep-seated aspirations to
live in a truly race-neutral society, against the fears that have kept us from achieving that society. If those
aspirations didn't predate corporate media's decision to bankroll the browning of the commercial
mainstream, all the advertisements in the world couldn't make white parents accept Shaquille O'Neal or
Brandy as role models for their children.
I believe Madison Avenue does know what it's doing. It's moving product by telling us who we are. It tells
us we're comfortable with the black people who inhabit television's fantasy of the American good life. That
white people are afraid of this reality in the streets is not Madison Avenue's problem or responsibility;
that's what politicians are for. The transracial corporate media agenda does create a rising dissonance
between the rainbow dreams of commercial culture and the harsher social reality -- but that gap can be
closed, at least in part, by new leaders willing to exploit our hopes for a multiracial world instead of our
fears. Think about it: Who could you see hanging out with Mike in a post-retirement Nike commercial, Bill
Clinton or Pat Buchanan?
Does Americans' embrace of the slogan "be like Mike" mean white people want to be black? No, and it
probably never will. But by saying they don't see Jordan as black, whites may really mean they see him
as human -- and that is still an unalloyed good. To identify with Jordan, whites have had to unpack many
pieces of racial baggage -- the chocolate skin, the black diction, the fear, the sexual taboo -- and then
pack them up again when the game ends. With every unpacking, they compare the objects of his
blackness with the elements of their own whiteness, and then minimize the differences enough to hang
on his every move. My theory? The more they pack and unpack, the more items are taken out of the
closet and left on the table where, in time, they're easy to toss out.
White folks may still be nervous around minorities in their commuter car. But as America votes with its
dollars to narrow its racial differences, the distance between the American dream and the American
reality is closing.
SALON | Jan. 29, 1999
Name Games, The folly in the attempts to define "African-American."
Richard Thompson Ford, Posted Thursday, Sept. 16, 2004, at 3:21 AM PT
Among the many indignities racial minorities must endure are the perennial debates over the meaning of
racial identity. Are the people formerly known as "Negroes" or "colored people" to be called people of
color, black, Afro-American, or African-American? Are people of Mexican and Central-American ancestry
Hispanic, Latino, Chicano, or Latin-American? Is it still OK to call people "Oriental," or is that a term best
limited to rugs and geographic locations? More urgent than the nomenclature itself are the questions
about who "counts" as a member of these groups, with their ever-increasing string of aliases.
A recent version of this controversy involves immigrants from Africa or the Caribbean and whether they
are "African-Americans." Harvard professors have publicly worried that over half of Harvard's "black"
students did not descend from American slaves but are, rather, immigrants or the children of immigrants
from Africa or the Caribbean. Though it started off on the right track, this debate predictably became as
much about the "identity" of these immigrants as the direction of Harvard's admissions policies.
Meanwhile Republican Alan Keyes complained that the Democratic Party's rising star, Barack Obama—
the son of a Kenyan immigrant—"[wrongly] claims an African-American heritage." In reaction to which
UC-Berkeley linguist John McWhorter quite reasonably pointed out that immigrants from, well, Africa, who
are now residents of the United States of America, have a stronger claim to the term "African-American"
than most American blacks, whose connection to Africa is generations old. Others worried that defining
"African-American" as rooted in geographic origin seems to suggest that Teresa Heinz Kerry, born in
Mozambique, and Charlize Theron, born in South Africa, are "African-American."
The nation anxiously awaits the answers to these urgent social questions.
It shouldn't. Arguments about the correct definition of racial identity are this century's version of medieval
scholastic theologians' debates about how many angels can dance on the head of a pin. They seem to be
of vital moral and spiritual importance, involving many contested terms, conceptual puzzles, and facts not
in evidence. They're a great way for smart people to pass the time until the bartender pours the next
round. But there's no way to resolve these questions or even to agree on common grounds for debating
Do we even need official definitions of racial identity to apply antidiscrimination laws or race-conscious
policies? Actually, no. Antidiscrimination law prohibits decisions driven by suspect motivations. What
matters is the intent of the decision-maker—not the racial identity of those affected by the decision. An
employer who discriminates against an employee based on a mistaken belief about that employee's
ancestry is just as liable for discriminating as if he had been correct.
In some instances the plaintiff in a discrimination suit must nevertheless establish that she is a member of
a protected racial group—raising the possibility that formal racial definitions actually matter. But it's telling
that neither Congress nor the courts have ever established official membership criteria. Instead, courts
successfully rely on uncontested social conventions in most cases, and when those social conventions
fail, the identity of the plaintiff as a member of a protected group is determined by the courts on a caseby-case basis.
We frequently rely on self-reporting to establish racial identity as well. The U.S. Census Bureau, for
instance, has long abandoned any attempt to assign individuals to a racial group based on objective
criteria—relying exclusively on the self-identification of individuals. The same is true for affirmative-action
purposes—the obvious subtext of the Harvard controversy. Although it would seem that institutions must
first agree on a definition of racial identity to administer such race-based policies, they needn't and
haven't. Like the Census Bureau, those universities that consider the race of applicants rely largely on
self-reporting. Of course, a university might rescind the admission of a student who made an obviously
disingenuous claim to an underrepresented racial group, just as it could with respect to a student who
claimed to be from an unrepresented region of the nation but in fact had only visited there on vacation.
But universities need not and do not apply specific objective criteria to racial identification.
As such, in the Harvard controversy the real question was never who is or isn't "African-American." The
real issue is the narrower—and more answerable—question of whether African and Caribbean
immigrants and their children—whatever their "race"—should enjoy affirmative-action preferences. There
are real dilemmas here, but they simply don't involve the correct definition of "African-American." They
involve the correct rationale for affirmative action.
So, let's consider three rationales commonly advanced:
1) A selective university might want a system of affirmative action to educate the future leaders of
discrete, established communities. "African-Americans" are a large, established, and fairly discrete
community. Here the question is whether immigrant blacks have become or are likely to become plausible
future leaders of that community—are they similar to native-born blacks for purposes of community
2) A university might believe that racial discrimination is an important social issue that merits academic
study and want to be sure that some people who have experienced that discrimination are represented in
its student body. (Sandra Day O' Connor's opinion in Grutter v. Bollinger—the recent Michigan affirmativeaction case—endorses such a rationale: "By virtue of our Nation's Struggle with racial inequality,
[minority] students are both likely to have experiences of particular importance to the Law School's
mission and are less likely to be admitted in meaningful numbers on criteria that ignore those
experiences." [Emphasis added.]) Here we'd want to ask whether immigrant blacks are likely to have
experienced the same or similar types of discrimination as native blacks.
3) A university might believe that racial discrimination has depressed the grades and standardized test
scores of black applicants and wish to correct for this bias in the available data. (O'Connor's Grutter
opinion also suggests this rationale: The quotation above indicates that minority students "are less likely
to be admitted in meaningful numbers" because of "our Nation's Struggle with racial inequality.") Here,
we'd want to know whether discrimination has had a similar adverse effect on the performance of the
immigrants as on native-born blacks.
None of these questions are answered or even clarified by any abstract definition of "African-American."
And conversely, the answer to the affirmative-action question may not be relevant in other contexts in
which race is at issue. For instance, suppose you decided that immigrant blacks don't count as AfricanAmerican (of course I'd discourage you from putting it this way) for affirmative-action purposes. You could
arrive at this conclusion—under rationale No. 3 above—based on a belief that whereas high-school
grades and standardized-test scores typically underpredict the potential of native-born blacks, they are an
accurate predictor of the potential of immigrant blacks. That position would still not commit you to
agreeing with Alan Keyes that Barack Obama—the child of an African immigrant—is not AfricanAmerican. It would be perfectly consistent to say that although Obama doesn't qualify for affirmativeaction preferences, you consider him "African-American" in the context of his candidacy for the U.S.
Here, the real question is whether Obama's experience as someone whose appearance will have
exposed him to his share of antiblack racism (regardless of his cultural or ancestral heritage) is likely to
make him more sympathetic to the political concerns of others victims of racism. Frequently, the words
"African-American" are just shorthand for such a presumption.
Arguing about who qualifies for a racial label is not only unnecessary, it also flirts with perils best left in
the past. For instance, while Harvard's controversy focused primarily on immigrant blacks, to a lesser
extent it called into question the identity of the children of interracial couples. Such an inquiry threatens to
revive—under a new rationale—the odious 19th-century ideas of "blood quantum" and racial purity.
Perhaps what's most unfortunate about these pointless debates about the meaning of racial identity is
their sloppy and volatile mix of the personal and the political. For instance, Keyes (channeling the spirit of
liberal multiculturalism to perfection) emotes: "My ancestors toiled in slavery in this country. ... My
consciousness, who I am as a person, has been shaped by my struggle, deeply emotional and deeply
painful, with the reality of that heritage." This might be a moving first sentence in an autobiography, or an
important revelation to one's psychotherapist, but in the context of national politics, who cares? Subjective
accounts of personal identity are at best distractions from more tangible and objective issues of racial
injustice—such as employment discrimination, residential segregation, and an often racially biased
criminal justice system. At its worst, the narcissism of identity politics threatens to mire the struggle for
racial justice in intractable conceptual debates and ineffectual emotionalism.
The correct definition of racial identities seems important to a lot of smart people. But that doesn't make it
at all important in fact. Maybe if we argued about it long enough, we could all agree on an omnibus
definition of racial identities. And maybe there are angels, they do dance on the heads on pins, and if we
thought about it long enough, we could figure out how many could crowd on before one would topple off
the edge. Because nothing whatsoever depends on the answer to the latter inquiry, we've all quite
reasonably stopped caring. I expect the angels will forgive us. And soon enough the nation's blacks,
whites, Latinos, Chicanos, Hispanics, Asian-Americans, Orientals, Negroes, colored people, and AfricanAmericans will thank us, if we stop caring about the terminology and definition of races and get on with
the important work of fighting racism.
Black and white and read all over
One graduate student discovers that skin color sometimes matters more than cogent argument.
By Steven Pyrrho
---------June 04, 1999 | "I 'd never date an Asian. I just don't like my own people," Joy said, smirking
"Well, I would never date a white person," Regan responded in dead earnest. It was before our graduate
seminar on English Renaissance literature that Joy and Regan, both Korean-American classmates of
mine, began chatting about race and relationships.
"Just to make sure no accidents happen," I put in sarcastically. "You could each administer blood tests to
your prospective partners to ensure racial purity."
There's no reason I should have known better, but now of course I wish I had. It was the beginning of my
first year of graduate school at UC-Berkeley's English Department, a program known for pumping out
scholars who are as well-versed in the litany of anti-colonial political correctness as the rhyme schemes of
Chaucer. As green and eager graduate students, we all took (and, yes, still take) the finer points of
racially tinged rhetoric very seriously. So I was surprised to hear such racial essentialism uttered by two of
the department's young disciples, and I took it upon myself to point out their mistake. Now, with more
irrational discussions about race under my belt than I care to admit, it's obvious that I was stepping into
the trap that I've since tried mightily to avoid. Because even though people in graduate humanities
programs seem to be thinking very subtly about gender and race, too often identities are dressed up as
ideas. Even when people assiduously think through their positions, their skin color or sexual proclivity
sometimes trumps their intellect.
"You should think about what you said about blood tests," Regan chided me after class. "Race isn't about
genes, it's socially constructed, it's about power relations."
"Of course it is!" I exclaimed. "But you made the categorical statement about whites!"
"And it's the white power relation that I don't want to be a part of," she said.
I didn't ask her how she, who had gone to Harvard, was engaged to a medical student and seemed to
carry a different handbag every day, imagined herself to be on the innocent end of the "hegemony." In
some ways, she seemed to be a smart, fiercely intellectual young scholar, who, like all of us there toiling
with nary a job prospect, had decided to devote her life to thinking about meaning, virtue and the grave
implications that language can take on. I wanted to give her the benefit of my doubt and simply pursue
the argument without dismissing her. "But if this power relation co-varies so exactly with white genes that
you can call it the 'white power relation,'" I protested, "then it sounds like you're assuming that genes are
almost the blueprint for social construction, which is the opposite of what you're asserting."
She berated me and all white people for regarding race merely academically, for thinking that it can be
accessed and debated just like any other subject. I confessed I had never taken a course on race and
that I found academic writings on race as repugnant as academic writings on literature.
"So you presume to talk about race when you haven't even deigned to study it -- you probably haven't
even read one book by Cornell West!"
Her argument that it was typical of white people either to study or not to study race seemed to have all the
bases covered. I got a little defensive. "If being racist has anything to do with how one feels about, thinks
about and treats others," I replied hotly, "then I am not racist and nothing I have said suggests that I am."
"Clearly," she said, her eyes flashing with impatience, "your conceptions of race are very outdated, and
this conversation is pointless because it would take too long even to get to the point at which you could
understand the necessary terms. And I didn't even have to say as much as I have to you -- I could just
have written you off like the other students in the department."
This stopped me in my tracks.
Regan informed me that various comments I had made inside and outside of classes had given me a
reputation as being "reactionary" and "complacent on the subject of race."
So there it was. Behind all the arguments we perennially engage in -- about racial iniquity or poverty or
sexual orientation -- this possibility always looms. Through the hurled abstractions, we learn that we're
unpopular. Ivory towers disintegrate to sandboxes in an instant. But for me this only tautens my
determination to make the conversation about our ideas, not our identities.
What had I done to alienate my classmates -- to make many people think, as she told me, that I didn't
belong in the department -- when for so many years I had worked so hard to arrive? In a class, I had
suggested that even in "Othello," not every line is about race, and that to think so is as monomaniacal as
it would be to think that the play is not about race at all. On another, even more infamous occasion, I had
complained about something my Chinese housemate was always cooking, which I was never able to
identify, not because I disdained to ask but because we can't speak each other's languages. Whatever it
was stunk terribly to me -- to me, not to the objective nose or to the radical nose, just my nose. Is a nose
subject to ideology? If so, what's behind my loathing of my stepfather's sauerkraut?
"They're not going to actually do anything," she reassured me about my classmates, "but let me put it this
way: They won't go out of their way to make you feel comfortable."
There were no African-Americans in the class on "Othello," nor were there any Chinese present to hear
me slander their cuisine, if indeed that is what I had done. So it must have been on the behalf of these
groups that my mostly white classmates who were listening were so scandalized. At my "Othello"
comment, a student gasped. To the Chinese cooking complaint, a student, while rolling his head back,
said slowly and deliberately, "Ouch!"
"You are participating in an ideology that makes Western European-ness the model for what it means to
be American," Regan said about my Chinese cooking comment. Trying to avoid a no I'm not-yes you are
trap and curious to know what she really believed, I ventured. "But don't all cultures believe to some
extent that they are superior to others?"
"No, not like whites."
"What about earlier this century when Japan invaded Korea and occupied it for 30 years?"
"The Japanese didn't think they were superior, they just needed the resources. You obviously know very
little about history."
"This is why I haven't taken a class about race," I fumed. "I have heard too many statements like yours
which employ double standards in interpreting history."
"Did it ever occur to you," she asked, "that such discourse against whites might be so prevalent because
it is true?"
"Sure, to the extent to which the mere fact of a thing's happening legitimizes it." My most obvious fault in
these arguments is my tendency to assume a position of absolute critique, and at moments like these I
realize that no matter how sharply I seem to myself to be thinking, beneath is a juvenile impulse to prove
people wrong. In this instance, I lapsed into full satire. "Is slavery right? Well, let's see, is it happening? I
guess you'd be pleased to see history come to a complacent halt, since whatever is, is right!"
"How much more deeply do I have to watch you dig yourself in?" she asked.
She grimaced.
Suddenly, there was nothing more important than showing her that I wasn't the schoolyard bully she'd
painted me to be. "If there's something I'm ignorant of about race," I pleaded earnestly, "whether a fact or
a way of thinking, and if you're genuinely committed to promoting greater understanding, then please try
to explain it to me."
"It's not my responsibility to educate you, and I can see that our classmates are right about you," she
said. I could have tried to explain myself again -- that my comments about race were in fact anti-racist if
anything and my comments about food, were well, about food, but I didn't. Instead, I surrendered to my
fear of being excluded. I played my identity trump card. I told her about my sister who is half AfricanAmerican, half Vietnamese, and my half-Latino, half Native-American brother. I told her how my parents
adopted them before I was born. I told her that I was born into a family where racial difference is just an
everyday fact of life, not something to be afraid of. But more importantly, I cried -- so that she could see
my multicultural, albeit invisible, identity shining through me.
"I'm glad we had this conversation," Regan said, at last relaxing. "I'm very glad."
My Oprah-esque confessional meant something to her, and she responded with something like
forgiveness for my seeming like an average, white, middle-class, neo-liberal bigot. But I felt as though I
had just failed an exam more important than any Ph.D. orals, and I couldn't forgive myself.
Can a Dog Be Racist?
The case of the prejudiced pit bull.
By Clara Jeffery
Posted Wednesday, Feb. 26, 2003, at 8:06 AM PT
To be an American is to receive a continuing education on race. But one does not,
perhaps, expect to receive lessons from a dog. Then along came Percy, a young pit
bull friends of mine found in Brooklyn's Fort Greene park last summer. The couple
had little dog experience between them, but Percy appeared at that point in a
relationship when increasingly large gestures of commitment are required (the
engagement would come five months later), and he was taken in on a probationary
basis. He proved to be sweet-tempered, if excitable, goofy and energetic, easily
house-trained. In balance, a lot of fun. There's just one problem: Percy is a racist.
His prejudice was revealed in dribs and drabs. The first clue came a week after his
adoption when, while on a Brooklyn beach, he eyeballed and growled at two
fishermen a hundred yards away. They approached, lugging buckets of fish, and he
began ferociously barking and lunging. As the men gingerly passed by, we could
see that they were Hispanic.
A lone incident would have been dismissed, but Percy targeted my thenboyfriend—also Hispanic—for similar treatment. And he was prone to lashing out at
black men, too. Teased for taking in a racist dog, my friends—who are white—initially objected. He was a
good dog, a sweet dog, people are already biased against pit bulls, don't call him a racist. Not all men of
color were targeted, they pointed out. And indeed, the odds seemed to increase if the man was carrying
bags or luggage, or if his clothes were particularly baggy. But as Percy now resided just off a main
shopping district, and in the heart of hip-hopping Fort Greene, these distinctions provided little solace.
Most dog owners and people of color will admit (bashfully or forcefully, depending) that dog racism exists.
Many non-pet-owners (and Cartesians) will sniff disdainfully. Racism requires malice aforethought, they'll
say. Dogs can't think, therefore they can't be racist.
Nonsense, says Dr. Nicholas Dodman, a professor at Tufts University School of Veterinary Medicine and
author of several books on animal behavior, most recently If Only They Could Speak. "Any behavioralist
knows that dogs don't like subsets of people," he says, and though the most common subsets are
broad—strange men or little children—"sometimes it can be quite specific. It could be tall men, or men
with beards. It might be men who are wearing big shoes, might be as subtle as men who smoke
cigarettes—which can be hard to pick up on—but it can also be black guys."
Dogs can be trained to discriminate. Some Jamaican resorts feature dogs that chase blacks off the beach
while leaving white frat boys to fry like bacon. South Africa's apartheid government bred "Boerbuls" by
crossing Rottweilers, Dobermans, bloodhounds, German shepherds, and even wolves to create
very aggressive dogs for its security services. In the 1980s, the Herstigte Nasionale Party advertised such
animals as "racist watchdogs" created "especially for South African circumstances." In his 1982 film White
Dog, director Sam Fuller explores the socialization of racism by having a black man attempt to retrain a
dog taught to kill blacks—a so-called white dog—only to have the dog attack whites instead. Paramount
found the film disturbing enough to block its release for more than a decade.
Barring human intent, however, what turns an otherwise sweet dog like Percy into a bigot? Typically, such
behavior indicates that the dog was not exposed to the people it now targets during its developmentally
"sensitive time"—weeks 3 through 12—when its understanding of the world was formed. "If you take a
dog who has never encountered a black man, or someone who has a funny walk, who uses a walker, or
has a gimp or a limp, and he sees the first one in his life when he's six months old. … it's going to be a
shock," says Dodman. "He's going to think 'Jinx! That's pretty strange! What the heck is that!' They might
hide—that's the more fearful type of dog. But if they're a little bit macho"—known in the trade as "fear
aggressive"—"they might try and go for it, to try and drive it away. And it's because they're unfamiliar."
But even if unfamiliarity breeds contempt, how does this explain Percy? Whatever the circumstances of
his early life, being abandoned in Fort Greene indicated that he was, if not raised by, at least exposed to
people of color. In such a case, a dog probably has had a bad experience at the hands (or feet) of those it
doesn't like. This does not necessarily incriminate Percy's previous owner. In The Dog Who Loved Too
Much, Dodman profiles a dog who developed a mysterious hatred of white-bearded men late in life.
Eventually Dodman determined that the owner's white-bearded ex-boyfriend, left alone with the dog just
once, was the likely culprit. "A dog's memory is like a photographic plate," Dodman says, "whatever
happened, it just took a snapshot of that person and logged it in its long-term memory as 'bad'." (In the
same vein, dogs can develop an aversion to certain breeds, sizes, and colors of other dogs.) Extreme
trauma can even cause a dog to exhibit the symptoms of post-traumatic stress disorder.
Whether it's bad experience or lack of experience that turns a dog into a racial profiler, the habit is hard to
break. If the dog barks and the person recoils, the dog registers a victory. (Such "positive" reinforcement
goes a long way to explain dogs' fixation on mailmen: He comes, I bark, he leaves.) And even if the
person doesn't recoil or show fear visible to the human eye, the dog's sharp eye and sharper nose can
sense fear in a tiny gesture or a whiff of sweat.
And given the Percys out there, maybe people of color are more likely to be afraid of dogs. According to a
national Purina poll, people of color account for less than 15 percent of all dog owners in this country.
Historically, dogs have been used to suppress blacks, and those who now live in inner-city neighborhoods
must contend with the Rotts and pits gangbangers use to instill "respect." Unfamiliarity fortified by bad
experiences could generate a disproportionate number of fearful responses.
Apprehension on the human's side and ignorance on the dog's can lead to a didactic encounter that
reinforces prejudice and fear on both sides. The personality of the owner can make matters even worse.
Dodman recently completed a large study of the personality profiles of owners whose dogs are fear
aggressive and—no surprise—the owners tend to be somewhat fearful and awkward themselves. "If you
are nervous around people, the lead becomes a telephone line going straight to the dog," he says. "As
you tense up on the lead, the dog will pick up on the tension. He might glance at you and see the
expression on your face and then he is keyed and ready to go. Cocked and loaded."
Add race to the equation, and the potential for ugliness deepens. If a white owner is apprehensive about
say, blacks, the dog could manifest that apprehension, which could encourage blacks who encounter that
aggressive canine to fear dogs and dislike their white owners. Even owners like my friends, who I'll posit
didn't come into the situation with prejudice, now find themselves tightening the leash or crossing the
street when they see someone Percy is prone to bark at coming their way. And while they do this to avoid
a bad situation, it could reinforce the very qualities they wish their dog didn't possess.
It is possible to mitigate such behavior, through a sort of doggie diversity training, whereby the pet is
gradually exposed to what sets it off. But it can be hard to persuade your black or white-bearded friends
to participate in such cultural immersion exercises. (My friends had serendipitously hired a black trainer
for Percy, whose behavior has since improved.) And even careful training can never totally eliminate the
possibility that a trigger too similar to the traumatic event could cause the dog to lash out.
Some will argue that what dogs display is not racism, but something more akin to cause-and-effect
conditioning. Really, though, is there a difference? Consider that many people become prejudiced by
being raised in a very insular way, in their own enclave of whites or Hispanics or blacks, largely ignorant
of people who are different. Humans, too, fear the unfamiliar and use a bad experience or two to tar a
whole class of people. The difference between dogs and people is that people are supposed to be smart
enough to recognize the logical fallacy of such a reaction and a dog is, well, just a dog.
The Bestiality Perplex
Timothy Noah
Posted Monday, April 2, 2001, at 2:23 PM PT
Chatterbox has been brooding all weekend about what his policy should be regarding bestiality. It hasn't
come up before, partly because Chatterbox doesn't own any pets, and partly because he wasn't aware
that bestiality had become a political issue until he read an outraged March 30 editorial on the subject in
the Wall Street Journal. As a matter of personal preference, Chatterbox would characterize himself as a
heterosexual speciesist (and happily married man). But what are Chatterbox's views concerning
interspecies congress among others?
Perhaps we should back up a bit. The Journal's ire was directed at an essay titled "Heavy Petting" by
Peter Singer on the highbrow porn Webzine Nerve. Singer is, of course, the notorious bioethicist whose
Princeton appointment three years ago caused a mild ruckus because of his hard-line views about animal
rights. (It was Singer who coined the term "speciesist.") In the Nerve essay, which is actually a review of a
new book about bestiality called Dearest Pet, Singer argues that the taboo against bestiality should be
dispensed with. The foundation for Singer's argument is the Aristotelian view that man is part of nature,
as opposed to the Platonic view that man exists apart from nature. (A chunk of Al Gore's sophomoric ecotome, Earth in the Balance, is dedicated to criticizing the Platonic worldview and embracing the
Aristotelian one, a stance that Lynne Cheney attacked rather unfairly in her plodding anti-politicalcorrectness jeremiad, Telling the Truth. Had Singer's Nerve essay surfaced before the November
election, Gore's Aristotelianism might have tempted the Journal's high-spirited partisans to declare Gore
the animal fanciers' fellow traveler. Though, as Chatterbox has written before, Gore toward the end of the
campaign attempted a bold raid on the Platonist camp.)
In Singer's philosophical construct, zoophilia is just another, slightly less conventional way for humans to
assert fellowship with the rest of God's creatures:
There are many ways in which we cannot help behaving just as animals do--or mammals,
anyway--and sex is one of the most obvious ones. We copulate, as they do. They have
penises and vaginas, as we do, and the fact that the vagina of a calf can be sexually
satisfying to a man shows how similar these organs are. The taboo on sex with animals
may, as I have already suggested, have originated as part of a broader rejection of nonreproductive sex. But the vehemence with which this prohibition continues to be held, its
persistence while other non-reproductive sexual acts have become acceptable, suggests
that there is another powerful force at work: our desire to differentiate ourselves, erotically
and in every other way, from animals.
To Singer, then, you're a bigot if you'll accept a Great Dane into your home but draw the line at letting
your sister marry one. As with other sexual taboos, Singer argues, the one against bestiality has been
violated regularly down through the ages:
[Dearest Pet author Midas] Dekkers, a Dutch biologist and popular naturalist, has
assembled a substantial body of evidence to show that humans have often thought of
"love for animals" in ways that go beyond a pat and a hug, or a proper concern for the
welfare of members of other species. His book has a wide range of illustrations, going
back to a Swedish rock drawing from the Bronze Age of a man [engaged in sexual
congress with] a large quadruped of indeterminate species. There is a Greek vase from
520 BC showing a male figure having sex with a stag; a seventeenth-century Indian
miniature of a deer mounting a woman; an eighteenth-century European engraving of an
ecstatic nun coupling with a donkey, while other nuns look on, smiling; a nineteenthcentury Persian painting of a soldier, also with a donkey; and, from the same period, a
Japanese drawing of a woman enveloped by a giant octopus who appears to be. ...
Oh, never mind about the octopus. Singer concedes that few of these art works likely depict events that
actually occurred, but he adds that in the 1940s, 8 percent of males and 3.5 percent of females reported
at least one interspecies tryst to Dr. Alfred Kinsey, and that among men living in rural areas, it was more
like 50 percent. In fact, subsequent surveys have found much lower percentages, leading one to suspect
that Kinsey was demonstrating a bias having something to do with his training as a zoologist. (Click here
to read a debunking of various bestiality urban legends.)
Singer is clearly right that any sexual taboo based on the idea that sex exists solely for reproduction
doesn't make much practical sense, even for the boring heterosexual mainstream, in this age of
contraception. But Chatterbox can't join Singer in concluding that the sexual revolution should give
bestiality a free pass. Singer is so focused on trying to persuade his readers that people are no better
than animals that he forgets to take into account the welfare of the animal. The Journal editorial describes
Singer's essay as arguing that "the only real issues are whether you get the animal's consent--and you
don't kill it as part of your pleasure." In fact, though Singer does denounce sexual practices that involve
outright cruelty, he doesn't really explain how an animal can go about giving consent because, well, you
know, animals can't talk. Sure, a dog humping your leg may be conveying a certain message, but without
the kind of verbal confirmation required these days by every college freshman manual ("no means no"),
how can you be certain? Moreover, it isn't immediately obvious that even if an animal could tell you its
intimate desires that this would constitute informed consent, any more than would a "yes" from a homo
sapiens under the age of 18. But wait, you say. Who cares whether an animal gives its consent or is the
moral equivalent of jailbait? It's not a person; it's just a dumb animal. Who cares what an animal thinks?
But this, of course, is not only an invitation to all kinds of animal cruelty, but also a contradiction to
Singer's core belief that animals and humans should be valued the same. Singer's tolerance for bestiality
is therefore not only repulsive and weird. It's also ... speciesist!
Frank Admissions. The Supreme Court finally talks seriously about race.
By Dahlia Lithwick,
Posted Tuesday, April 1, 2003, at 6:23 PM PT
Several of the links in this piece launch audio clips from Tuesday's oral
If this kind of wanton openness and transparency on the part of the Supreme Court continues, I'll be out
of a job. But the court's decision to permit live audio broadcasts of today's oral argument in two affirmative
action cases from Michigan has welcomed the entire nation into the courtroom for only the second time in
history. (Bush v. Gore was the first.) I urge you to help put me out of a job by listening to the broadcast on
C-SPAN, reading the transcripts on the Detroit Free Press (click here for the second argument), and
generally experiencing that infrequent, warm fuzzy glow that can be achieved only through participatory
Argument in the two cases, Grutter v. Bollinger and Gratz & Hamacher v. Bollinger, takes place over two
consecutive hours this morning. Both suits were filed by rejected white applicants to University of
Michigan schools. Grutter is a challenge to the affirmative action policy at the law school, and Gratz
involves the policy at the undergraduate school. A divided 6th Circuit Court of Appeals upheld the law
school policy as constitutionally permissible and never quite got around to deciding the undergraduate
case. The undergraduate case is the tougher one since their admission policy automatically awards 20
points (out of a possible 150) to applicants who are black, Hispanic, or American-Indian while the law
school uses a less formal "critical mass" test to admit what it deems a racially diverse class each year.
One of the most striking aspects of today's arguments was how very untechnical and legalistic the
discussion actually was. Constitutional law professors expecting the court to turn the emotional and moral
issues into theoretical nitpicking over the appropriate level of constitutional scrutiny or the legal
significance of Justice Lewis Powell's inscrutable opinion in that last major university affirmative action
case—Bakke v. Regents of University of California—would have been disappointed. The court showed
less interest in arcane three-part tests than in fundamental fairness questions: How can racial equality be
imposed on the backs of whites? Is there any race-neutral policy that could adequately address the
problem of racial disparity in this country? Are we supposed to allow racial preferences to continue
indefinitely? How can we fix our racial problems without taking race into account?
Every one of the justices proved today that the court is neither out of touch nor inclined to hide behind
jargon; their discussion was closer to the one you're having around your dinner table tonight. While some
of the oral advocates seemed surprised at the twists and turns of the argument, the morning proved—in
more than one way—that this court is capable of "getting it" when it really matters.
First, in Grutter, Kirk Kolbo argues for Barbara Grutter, the white applicant refused entry to Michigan Law
School despite a 3.8 GPA and an LSAT score in the 86th percentile. Not surprisingly, Kolbo engages in a
skirmish almost immediately with Sandra Day O'Connor—widely viewed as the swing vote in these
cases—when she asks how a school with a very limited number of spots can make hard choices about
admissions and not use race as a relevant factor. Kolbo—opposing any race-conscious decision-making
at all—replies that other factors don't violate the 14th Amendment's guarantee to equal protection under
the law for all races. O'Connor points out that "the Supreme Court has upheld using race in certain
contexts ... you're speaking in absolutes, and it isn't like that."
Justice Ruth Bader Ginsburg then stages what can only be characterized as a hijacking by amicus,
invoking a green friend-of-the-court brief filed on behalf of retired military officers stating that (as
paraphrased by Ginsburg) "to have an officer corps that includes minority members in any number, there
is no way to do it other than to give ... a plus for race." When Kolbo says he cannot take that contention
as a matter of fact, Justice David Souter almost loses his mind: "Are you serious that you think there is a
serious question about that? That we cannot take that green brief as a representation of fact?" The court
goes on to argue about the factual accuracy, relevance, and implications of gutting affirmative action in
military academies, none of which sounds like a very good idea in wartime.
Justice Stephen Breyer jumps in to make his first of two pitches for upholding affirmative action based not
on Powell's "diversity" rationale but on the need for minority leadership. Listen to this piece of real-world
eloquence. Kolbo argues that the 14th Amendment's equal protection clause isn't violated by the sorts of
minority recruiting undertaken by military academies but is violated by Michigan's alleged quota system.
Solicitor General Ted Olson then takes a few minutes to condemn the Michigan plan. As a result of the
weird split-the-difference approach taken by the Bush administration, he has to both attack the Michigan
approach and defend efforts to promote racial equality in the abstract. Again he has to fend off an assault
from the military amicus brief (now being cited as "the Carter Phillips brief," if you please), and he sounds
greener than the brief by the end of it. When asked by Ginsburg whether he accepts that the military
academies all have race-preference programs, his response is that the Coast Guard does not.
Here is where Olson describes the Michigan plan as a "thinly disguised quota" (Tomorrow's headlines
today!) and makes the nice point that Michigan is wrongly "using stereotypes in an effort ... to break down
stereotypes; they're using race as a surrogate for experience." O'Connor then telegraphs her views on the
force of the Powell decision in Bakke by stating bluntly that "I don't think it commanded a court." Or that
Powell's "diversity" rationale is simply not the holding in Bakke. This makes it easy for a majority of the
court, if they want, to ignore Bakke and cook themselves up a new batch of affirmative action law.
Maureen Mahoney, representing Michigan Law School, battles Chief Justice William H. Rehnquist over
whether the law school's policy is merely a quota system. Setting aside a fixed number of seats would
constitute a quota, she says, but the annual variation in minority acceptance and enrollment suggests that
their "critical mass" plan does not. Here Justice Antonin Scalia makes the point he'll make several times
today: Michigan's problem is of its own creation. "If Michigan really cares about that racial imbalance, why
doesn't it do as many other state law schools do, lower the standards and not have a flagship elite law
school." Scalia proceeds to get incredibly annoyed with Mahoney when she refuses to give him a fixed
number (i.e., "quota") of how many minority students would represent a "critical mass" or "sufficient
number" of minority students at Michigan. "Is 2 percent a critical mass? ... OK, 4 percent? ... You have to
pick some number don't you? ... Like 8? Is it 8 percent??"
O'Connor reveals her own biggest concern in these cases when she asks whether there is any end to the
program or whether the racial preferences will continue indefinitely. And Justice John Paul Stevens
inquires whether affirmative action doesn't just engender more racial hostility in the long run. Mahoney
replies that the overwhelming number of students at Harvard and Michigan still support it, and Scalia
informs her that this is because "they're in already." If she wants to see racial resentment, ask high-school
Finally, and with two minutes left to her argument, Scalia asks Mahoney the following "question" (that's
really a lecture), and, amid much laughter, Chief Justice William Rehnquist gives her permission to treat it
as a statement.
Gratz, the second case, proceeds along similar lines as Grutter, except the undergrad policy, with its
points system, smells somewhat fishier. John Payton—who subs in for Mahoney in the university's
defense—is a little more inclined toward flowery rhetoric about the wonders of educational diversity.
Kolbo, arguing again for the rejected white applicants, tussles with the justices for a while over whether
one of the plaintiffs in the suit even has standing to sue. But mostly he argues that affirmative action
policies give administrators too much discretion to decide what constitutes a minority, who is a minority,
and what makes for a diverse student body. Stevens and Breyer point out that such a lack of standards
may be upsetting, but it's not, according to Breyer, "constitutionally relevant." And Ginsburg notes the
importance of this case: It would affect private schools as much as public ones.
Ted Olson has a slightly easier time in this round, mostly because he's not up against the dreaded
"green" brief. He argues that affirmative action simply perpetuates stigma, and when Souter says that the
point of affirmative action is to have enough minorities in a class to show that "there is no correlation
between race and points of view," Olson argues that it's nuts to give minorities preferences to prove that
minorities don't have monolithic views.
John Payton speaks finally for the university. He makes a long, moving speech about how outrageously
segregated the city of Detroit and state of Michigan are and how only campus encounters between
students can undo this damage. He scuffles with Rehnquist about how many students exactly make up a
"critical mass," and Kennedy basically puts his vote on the table with the comment that this program looks
like a "disguised quota." After more discussion about what exact number constitutes an amorphous
"critical mass" and more on why Michigan can't just lower its high standards, Justice Clarence Thomas
rocks the house by asking a question: "Do you think that your admissions standards overall at least
provide some headwind to the efforts that you're taking about?" (It's a trick! If Payton says it's working, it's
unconstitutional; if he says it's not, then it's irrelevant.) Payton doesn't get the chance to answer properly
before his time runs out. The case is submitted until a decision comes out in June.
For what it's worth, and to the extent it's all going to come down to O'Connor, she doesn't sound like a
woman willing to completely do away with using race as at least a factor in admissions decisions. In fact,
even Kennedy sounds like he might still be on the fence himself, at least as far as a sweeping decimation
of all race-conscious policies is concerned.
All this makes for a long morning of head-scratching. Everyone seems to agree that the racial divisions in
this country are a terrible problem, and almost everyone agrees that they need to be handled via
subterfuge: The affirmative action camp is for "critical masses" that look like quotas and for "diversity" that
may not bring about diversity. The anti-affirmative action camp is for pretending that other remedies work
when it's clear that you can't fix race problems by ignoring race. These are not really legal questions at
heart; they are almost insoluble social and moral ones. Take heart in the fact that the court at least
respected us enough today to address them as such.
A "poison" divides us, The man who has made it a personal mission to
destroy affirmative action one state at a time explains why the policy is so damaging.
By Alicia Montgomery
---------March 27, 2000 | Depending on who you talk to, University of California Regent Ward Connerly is either a
crusader for a color-blind society, or an Uncle Tom serving as a front man for racist whites. He authored
California's Proposition 209, which did away with affirmative action programs in government and higher
education, and repeated this triumph two years later in Washington state.
With the rallying cry "two down and 48 to go," Connerly has moved on to Florida. In the Sunshine State,
Connerly's mission has proved to be problematic for Republicans, particularly Gov. Jeb Bush. Like his
"compassionate conservative" brother George W., Jeb once enjoyed as friendly a relationship with the
minority community in his state as any Republican governor could hope for. But that good feeling is now
being undermined by Connerly's campaign.
Connerly, however, believes that affirmative action is the real poison ruining relationships between blacks
and whites. So he is trying to undo it one state at a time. In an interview with Salon, he defends his
initiative, and his new book, "Creating Equal."
What led you to write this book?
I started [it] five years ago just as an act of frustration when I was bringing this issue up as a regent. One
of my colleagues attributed my beliefs to some sort of political ambition, you know, that I was preparing to
run for office in California. That certainly was not the case.
I've found that it is very difficult for black people to let go of what I believe is a crutch. No matter how
much you can demonstrate that affirmative action is touching a very few people, there are those who
believe that their lives will be over without it, and that all that they've accomplished is a result of their
being "affirmative action babies."
So I wanted to show that I, for example, who grew up with modest means, am rather typical of a lot of
black people, many of whom in prior generations had nine, 10, 11, 12, 13 kids in the family. The husband
dies or leaves the house, the wife still raises the children and they end up leading productive lives
because of very strong families. Yet there's this myth that we're all dysfunctional.
[I also wanted] to get the nation to start confronting the broader issues of race: interracial marriages, what
does it mean to be called a minority, and affirmative action as opposed to preferences, and the issue of
profiling. I wanted to reveal my own experiences in the context of all those issues, and to suggest to the
nation that we need to start rethinking this concept of race, and to get beyond it.
What is the difference between affirmative action and preferences?
In my view, using the powers of government to make sure that people are not discriminated against, I
think that was the original intent of affirmative action. I think that is legitimate. Making sure that people
know about job opportunities by advertising in different newspapers, even going to a Cinco de Mayo fair
and letting people know that jobs are available or that public works contracts are being let. Using
affirmative action to -- as we're doing at the University of California -- in a non race-based way to provide
outreach to under-performing schools. Those things are affirmative action.
But when it gets to the point where you are making a selection for someone to be admitted to the
university or someone to be hired for a job, and to have one standard for someone who is black and
another standard for someone who is white ... I think that's a preference. And I think that those things are
wrong, and those things are being applied in many government arenas for the purpose or rationale of
trying to level the playing field, trying to achieve diversity. [B]ut I think that when you apply different
standards to people, that's discriminatory, no matter what you want to call it.
If, as you say, affirmative action touches a very few people's lives, why do you feel it's so
important to roll it back?
I think it's poisonous. I think it poisons the relationships between people based on their groups and based
on the perception that some are being left behind because of it. I can't tell you the number of people who
are white and male who say that "I would've been here except for affirmative action." There's no evidence
of that, but there's that perception in their minds.
And perception becomes reality. It poisons relationships and builds resentment, often needlessly. It also
marginalizes people, if you are female or you are black or you are Latino. Asians somehow largely
escape this stigmatization possibly because of the stereotype that Asians are better performers
But those of us who are in that group called "minority and women," if we are performing in any role that is
not seen as being a traditional role, the impression is that we did not get that by reason of our own
accomplishment. We got that because of somebody giving it to us, because of affirmative action.
The same kind of talk you describe from white men comes from some in the black community who
say "I could've gotten that job if it weren't for 'the man.'" How would these perceptions go away
just by eliminating affirmative action?
I think that both groups are blaming something else. There is discrimination, but I think a lot of black
people invoke racism in a chicken-little sort of fashion. They overstate it. On the other hand, a lot of
whites blame affirmative action for something that had nothing to with it. They lost a job because
somebody better got it.
But as long as you have this paradigm where people seem to be using race and gender as a means of
making hiring decisions, as long as they keep uttering this mindless blather about "we've got to achieve
diversity," it kind of taints the whole process. And the decisions that they're making would be no different,
in my view, if they just discarded the whole system.
If you argue that eliminating affirmative action helps create a true meritocracy, what about cases
like George W. Bush who got into Harvard and Yale with a C average?
If it's in the private sector, I don't necessarily like it, but I don't care what happens [there]. But when it
comes to government, one's connections should not play a role. That's precisely why I offered a
resolution successfully [at the University of California] to eliminate these "legacy admits," the preferences
that we were giving to the sons and daughters of U.C. alums, as well as what I call the fat-cat
preferences, in which a certain number of seats were assigned to the chancellor that he or she could fill
solely on the basis of who picked up the phone and called the chancellor.
At Berkeley, we gave one to the son of a king. The argument was, well, this will really help diversity.
Baloney. It wouldn't help diversity. It probably rewarded the U.S. senator who called and asked for that
It's the public sector I've been addressing. I haven't been directing attention to the private sector. I'm
talking about government, and how government treats its citizens.
In your book, you say that encounters with helpful whites helped shape your opinions about racial
preferences. Do you see how a black person with different types of experiences might reach
another conclusion about affirmative action?
Absolutely. I've never discounted the experiences of somebody else. We are creatures of our own
experience. We begin early in life to form attitudes about other people based on our own experiences.
What I am saying is that my experience refutes the notion that you can only learn from people who look
like you, and that America is not racist at its core. There are bigots; there are racists. They come in all
colors, believe me. But America is not a racist society.
[But] I can't tell you the number of campuses that I've been to where I meet bright black kids who say
"America is racist". How do you get to an institution like Harvard or Yale without encountering the helping
hands of people who are white or Asian or Latino?
What about the attitude you encounter from the political left, the kind of patronizing racism of a
liberal who assumes that race will always be this intractable problem?
The whole debate about college admissions really is more a class argument, in my view, than a race
argument. Because we have the largest share of people, who are low and moderate income for the most
part, supporting the higher education of a small number of people, especially at the select institutions.
That's why the whole debate about who gets into Berkeley, I think, is a very misleading one.
If we really wanted to help black people -- let's just take black people for an example -- we would not be
putting so much emphasis on getting them into Berkeley as we would giving them the equivalent money
to go out and buy their own cabs, or get the tools to become an electrician or a plumber, or the money to
take a vocational course.
Because the overwhelming majority of people, regardless of their color, are not going to go to college. But
we are so preoccupied with the concept of making sure we get X number of black kids into Berkeley that
we totally overlook the masses.
It costs $12,000 a year to subsidize sending a student to the University of California. It takes three
taxpayers to pay that $12,000 in California. If we said we think it's important that every person get a start
in life -- I'm not proposing this, but I'm saying it as a way to clear our thinking a little bit -- every person in
life deserves something to jump-start them into being productive.
And if we're going to spend $48,000 to $60,000 to educate somebody at the University of California, let's
say we're going to give you effectively a line of credit of $25,000 to use however you want to pursue
you're dream of becoming productive. If you want to be an electrician and you need to take two years of
electrical engineering at a vocational school, OK. We're going to finance that.
But we don't even look at that. If I proposed that, they'd think I was a kook, because we're so hung up on
the notion that you either go to college or life's a failure. And if you don't get into Berkeley and you're
black, there must be some institutional racism there.
Don't you ever feel that some of your political allies are using the anti-affirmative action initiative
to mask their hostility to any forms of minority outreach?
Sure, there are those. They are very small in number, but I've seen them. There are people who I talk to
who, as I listen to them, that I come away thinking, "I don't like this person's motives." I'm in the unique
position of being kind of like the filling of a sandwich. I get to talk to those and interact with those who
agree with me, who are fellow quote conservatives, and I also interact with those who hate my guts.
I'm kind of caught in the middle, because I don't want to end all affirmative action, and I think the record
proves that with my support of the outreach programs that we're doing big time in California.
But at the same time, I think that preferences are bad and wrong and that they do exist. There are
agencies that started out with the best of intentions of simply eradicating discrimination. They then did not
accomplish their objective, and so they ratcheted it up a little more, and then they started imposing goals
and timetables. They still don't get their objectives, and so they ratcheted it up a little more, and say,
"Manager, if you don't meet your goals, you won't get your merit pay increase," making those goals the
functional equivalent of quotas.
Why did you choose Florida for your next initiative?
I think Florida is a state with the same elements of diversity as California, an urban state, a Southern
state with a large black presence. And I believe that this problem of race in America will only be solved
when black people come to the conclusion that the time is right. Whites are largely afraid to force the
issue, and black people, many of them, many of us, feel kind of caught back in the '60s. Many people
don't really trust whites. In Florida, one thing that comes up is "Well, it might be a better plan than what
we have now, but we shouldn't have to trust you."
So I thought of all those things plus the fact that it was going to be a hotly contested state in the
presidential race. The effect of having it happen in the fourth largest state with all those other factors that I
mentioned is tremendous.
What's the next state on your list?
We've been looking at Michigan, Oregon, Colorado. A lot depends on what happens with Florida's
Supreme Court on our initiative.
And what's the prognosis in Florida?
It could go either way. I'm optimistic. I can't see how in the world they can say that this doesn't represent
discrimination. In California, in Washington, in the Civil Rights Act of 1964, the language is almost
identical. And if everybody else can come to that conclusion, then why wouldn't the Florida Supreme
Court come to that conclusion.
But it is an activist court. It's a court that really doesn't want this on the ballot. The whole establishment
there doesn't want it on the ballot. So it could go either way.
In your book, you mention some unpleasantness that transpired between you and Vice President
Al Gore during a White House meeting.
The encounter was a distasteful one. Gore made the statement that "we are all prone to bigotry," and that
"there is evil that lies coiled in the human soul." And I said that this is truly frightening. The premise of
being a democracy, of being a free people, is that we're basically good people. And that doesn't mean
that we're all good or that we're going to do good things all the time, but I think that the premise is that we
are good people, and that we don't need our government to keep us from ourselves.
President Clinton, I think is genuinely a good person [who] genuinely likes people, and that seeps out of
every pore of the man. But Vice President Gore, when he shook my hand, he kind of crushed it. Typically,
public officials, since they shake hands so much -- and I'm now doing this a lot -- you learn not to overuse
your hand. The first thing that you're told is firm, not loose wrist, but firm. But don't overdo it because you
end up sending out the wrong signals, and you end up having your hand get weary. This man literally
crushed my hand. And I came away from that with the impression that he is a hateful man, and nothing
that has happened since then has softened that impression.
When he goes to black churches [he] talks about those who want a color-blind society having their
blinders on. He went to Washington, he went to Florida and singled me out. He said, "Florida doesn't
need Ward Connerly here," and he gets really personal in his attacks. And I've seen that ever since that
meeting in the way he approaches this issue. It's not just that he disagrees with you, he wants to hammer
you into the ground and cut you off at the knees, it seems to me. And I just have the impression that he's
just a hateful man.
Why gays shouldn't serve
There really is a valid military argument against military inclusion, but the forces of political
correctness won't allow it to be heard.
By David Horowitz
---------June 25, 2001 | Political correctness is a doctrine widely presumed dead. An object of ridicule that no one
defends these days outside the margins of the ideological left. Yet my recent tour of college campuses
under the necessary armed protection of campus security guards suggests that it is obviously alive and
well -- and itself protected -- in certain regions of the political culture.
A sure sign of p.c. thinking is when the other side of a controversial subject is successfully identified as
forbidden territory. To cross the invisible boundary that embargoes a politically incorrect view renders
one's motives immediately suspect. To argue the position is a sign of one's indecency. It is to mark the
holder of the position as a bad person, a relic of the reactionary past, an obstacle on the path to human
This was the object of the campaign of vilification I encountered when I suggested that reparations for an
injury committed 136 years ago and payable on the basis of skin color instead of injury was "a bad idea
and racist too." For the heresy of opposing the left on an issue it considered a political litmus, I was
accused of expressing ideas that were "offensive," and then tarred and feathered as a bonehead "racist."
The attacks weren't limited to me; they were also directed at the journalistic institutions that printed my ad
in the interest of free speech. My Salon colleague Joan Walsh accurately described these attacks as
"political correctness run amok. Yet they were also lent credence and support by pundits who generally
opposed political correctness like Jonathan Alter, Clarence Page and the Washington Post's Richard
Cohen. This is a sure sign that the tenets of political correctness are still very much alive and well. An
interesting case of this was recently provided by my good and courageous friend Andrew Sullivan in a
column that appeared in the New York Times Magazine. In it, Sullivan addressed the subject of gays in
the military in a way that I found morally persuasive and poignant on the one hand, but politically correct
and obtuse on the other. His column was titled "They Also Served," and it asked for "some ... recognition
in today's war nostalgia of the role that gay men have played in the past in defending their country." In the
film "Pearl Harbor," for example "Cuba Gooding Jr. played the brave segregated Negro, fighting back for
his country." In "Saving Private Ryan," "the sensibilities of the '90s were projected backward. We didn't
see just soldiers; we saw a Jewish American soldier, an Italian, a WASP and so on." Actually, Sullivan is
wrong on that count. This wasn't the sensibility of the '90s. It was the same sensibility I saw as a kid in the
1940s when World War II films invariably featured the identical rainbow and, in features like "Home of the
Brave," included black soldiers and was accompanied by a powerful anti-discrimination theme.
This is the part of Sullivan's argument I can wholeheartedly embrace -- and I believe a majority of
Americans do, too. When a socially conservative president appoints an openly gay man to an
administration post, it is a sign that things have really changed. But the recognition of gays who served
the country was not Sullivan's main agenda in his New York Times Magazine essay. Having established
the point that we should, but do not, acknowledge the service that gay men have performed for this
country, he wants to use it as a wedge for the argument that the armed services should abandon their
"Don't ask, don't tell" policy and embrace a gay presence in their ranks. Sullivan calls this goal a "diverse
military" and wonders why "we seem to be going in reverse."
It is at this point that Sullivan's argument abruptly incorporates the telltale syntax of political correctness.
His opponents are reactionaries, prejudiced against "diversity" -- i.e., gays. The assumption is that no
serious rationale other than lingering social prejudice exists for current military policy. Opposing it requires
no military argument, while defending it is a sign of failure to fully qualify for the ranks of the decent and
humane. As Sullivan presents the case, no other possibility exists.
Sullivan's argument, however, is counterintuitive. Of all social institutions, the military is the most
pragmatic. Its task, brutal in its simplicity, is to develop the most efficient killing machine that money can
buy and intelligence can devise. This singularity of purpose creates a paradoxical result. The military is
indeed retrograde in some of its aspects. (It's not a democratic institution, for example.) On the other
hand, it is more progressive in others. Precisely because the military's overriding purpose is to win wars,
free black fighting units were incorporated into its ranks more than a century ago, at a time when slavery
was still legal. Less well known is the fact that free black troops and military support units were part of the
Confederate war effort as well.
For almost a century after that, black soldiers were still segregated and confined to subordinate roles. But
in 1947 the military was integrated. That was seven years before the Supreme Court integrated the
nation's schools and 18 years before progress in the political realm made it possible to end segregation in
the South. (All this military progress was made notwithstanding the fact the military culture is largely a
Southern culture.) In short, because of its pragmatic focus, the military -- rigid in other areas -- in this
crucial terrain of social conflict has shown itself to be historically more flexible, progressive and ready to
adapt than the democratic political process itself.
Then what is the military's problem with including gays, other than prejudice? It is a sign of the force of
political correctness in our culture that there is probably not one among a hundred readers of these words
who could answer that question. Because of the embargo that political correctness puts on even
considering the arguments of the other side, the conventional "wisdom" is that an institution that
pioneered integration is run by individuals -- many of whom are themselves minorities -- who are more
prejudiced against gays than they were against blacks. And by 100 years! Is this an argument that any
self-respecting pundit -- in other circumstances -- would even want to be associated with?
Yet it is precisely the argument that all proponents of including gays in the military currently make. For all
such advocates, including my friend Sullivan, the "don't ask, don't tell" policy is just a hypocritical attempt
to appease lingering social prejudice. That's the voice of political correctness.
In fact, there is a military argument against the inclusion of gays in combat, which has nothing to do with
social prejudice. It may or may not be a sound argument. I am not a military expert, and any opinion I
have about the armed forces is necessarily based on intuition rather than experience. I certainly am open
to counter arguments. It's just that nobody on the inclusion side is offering any.
Sullivan's argument in the Times article is more interesting than most in that it credits the Army with
having important agendas that are worthy of respect. He observes that the current policy of "don't ask,
don't tell" creates a standing loophole for anyone who wants to leave the service. This is bad for the
military, and an argument for changing the policy. That's well and good, but hardly persuasive for a
service that relies on volunteers. To make a credible argument for changing the policy, Andrew and
others will have to address the military rationale for the policy itself.
"Don't ask, don't tell" is a way of containing the destructive force of sex on a combat capability called "unit
cohesion." To create the perfect killing machine, the military works hard to drain recruits of their
individuality and their self-interested desires in order to make them think like cogs in a machine. An
essential part of the military mind is that the members of fighting units don't think for themselves but do as
they are told. They work as a unit in which each performs an appointed task. The mission objective -- not
personal consideration -- guides their actions. Suppose a commander were faced with the choice of
risking his unit or risking the life of his own son, for example. Suppose the life of his son were threatened,
but to save him would risk the military objective his superiors had set. Suppose he let the human override
the imperatives of the machine. He would be doing what was natural, but the military objective he
sacrificed might cost the lives of hundreds or thousands.
To avoid such breaches of military discipline, military policy does not allow family members to fight in the
same unit. The same principle underlies its policy towards gays. Sacrifice of unit cohesion and military
order is the threat that sex between soldiers poses for any combat force. The open inclusion of gays in
the military is regarded by military men who oppose it a threat to effectiveness of the military as a fighting
This has nothing to do with the individual fighting capability of gay males. It is about unit cohesion. It's
about making every soldier a cog in a machine whose larger purpose he cannot understand, but he is
bound to serve. Suppose two men in a five-man unit are sexual partners. What will that do to the
cohesiveness and effectiveness of the fighting unit? What impact will it have on its ability to carry out its
mission? These are the questions that led to the ban on gays in the military and then to the subsequent
"don't ask, don't tell" policy. Because once you are able to tell -- and stay -- then there is no containing the
sexual problem.
As a comeback, some may be tempted to ask: What about the fact that women now serve in combat
units? Far from taking care of the problem, this comparison only underscores the dangers in letting
politicians treat the military as a social experiment. In one sense, of course, we don't really know the
magnitude of the threat since we haven't been in a ground war since women were allowed in combat
roles. (And there may, indeed, be a connection between the two.) But we do know that every military that
has attempted to place women in combat positions -- the Israelis, the Germans and the Russians provide
three examples -- has abandoned the practice, because of its negative impact on unit cohesion. (In part,
because men will instinctively sacrifice their tactical missions to protect the women.) We do know that
since women have been included in these roles, requirements and standards have been dramatically
lowered, and along with them morale -- a crucial, if immeasurable, element of military success.
Moreover, we know that once the politically correct foot is in the door, the possibility of reasserting
pragmatic controls becomes ever more remote. The same "progressive" intolerance that forced the
original issue will prevent any rational assessment of the result. The admission of women into the
American military was not a military decision but a political act. The Presidential Commission on the
Assignment of Women in the Armed Forces, which was created during Bush père's administration,
recommended against putting women in combat positions.
The Clinton administration ignored the recommendation and slipped the new policy into place without a
public discussion or congressional debate. During the Gulf War, women in the armed services failed to
report to combat duty at rates many multiples that of men. When you don't show up for your combat
assignment you are effectively sabotaging existing battle plans. On one ship, the Aurora, 10 percent of
the women en route to the war zone got pregnant. The military looked the other way. None was courtmartialed for cowardice or dereliction of duty. In other words, under the force of political correctness, the
military has surrendered to the fact that it will be a less effective fighting machine.
The integration of women in the military and in combat forces is a politically created debacle that has
already weakened America's defenses. The open inclusion of gays in the military could have an even
more damaging effect, with unknown consequences for untold lives. If proponents of gay inclusion want
to make their case persuasively, they need to make it not on the battlefields of political correctness, but
here in the real world.
We're here, we're queer, I'm sick of it
The gay pride agenda is about partying, not politics. It's time to talk about "gay equality."
By Christopher Ott
---------June 30, 1999 | Gay pride month is finally over, after a big weekend of partying and parades in New York,
San Francisco, Chicago and other cities around the world. Millions of people commemorated the
Stonewall rebellion, the shot-heard-'round-the-world brawl in 1969 that catalyzed a movement. We got
together and restated positions on everything from hate-crimes to gay marriage, and if dykes on bikes,
feather boas and shirtless gym boys are any measure, a good time was had by all.
In the midst of this good-natured celebration of Stonewall, however, a reappraisal of the pride strategy is
beginning to emerge. After three decades, the politics of pride is beginning to look a little stale and out of
step with the times, and it is becoming clear to both gay people and our straight allies that we need to
take a new step forward. With June's pride celebrations over, that step is to ask what the politics of pride
has left undone, and why.
Gay pride has been an enormous success. It's increasingly safe to come out, we've won passage of a few
gay-rights laws and it's becoming politically expedient (at least for Democrats) to support us. But there
have been setbacks. Anti-gay legislation like the 1996 Defense of Marriage Act is the law of the land.
Brutal hate crimes like the murder of Matthew Shepard are reminders of what can still happen to any gay
person in the country -- or even straight people suspected of being gay -- if we're in the wrong place at
the wrong time. We need to understand why we seem to take a step back for almost every step we take
The usual answer is simply that we're up against a deep, powerful prejudice. There's more to it than that:
The politics of gay pride is in a rut. It seems unable to appreciate its own success or acknowledge that
circumstances have changed. Instead, pride is becoming an end in itself.
Once pride was essential to curing the shame of the closet. Today it is the medication we're addicted to.
Once pride captured the spirit of a revolution. Today it is too often the gay equivalent of pro forma
patriotism. Once pride made a compelling moral argument. Today it is becoming the Ten Commandments
on every wall. And when pride in the simple courage that it takes to come out of the closet in a hostile
world turns into complacence and ideological rigidity, it threatens everything that we've won so far.
Recognizing this isn't easy.
A few years ago, Bruce Bawer, the author of "A Place at the Table: The Gay Individual in American
Society," was almost burned at the stake as an allegedly sex-negative, assimilationist conservative by
gay activists without much more tolerance for questions than their counterparts on the right. Among other
blasphemies, Bawer suggested that stereotypes reinforced by gay publications and events might have
the same negative effects as stereotypes promoted by anti-gay conservatives.
Even gay activists as outspoken as Larry Kramer have been charged with neoconservatism for asking
forthright questions about the overt sexualization of gay culture. The resulting fury has said less about
Bawer and Kramer's arguments than it did about the touchiness of their attackers.
I've been through a limited version of this treatment myself. I recently wrote a piece for the Los Angeles
Times that asked whether gay pride might be easily -- and needlessly -- misunderstood. In a circulated
response, Robin Tyler, executive producer of the Millennium March on Washington for Equality, objected.
She insisted that concern about how gay pride is interpreted is of no concern because everybody on the
other side is an irredeemable bigot. She bragged, "The Radical Right is in decline ... We have the
numbers and the commitment not to have to choose 'which fight,' but to continue to mobilize on all fronts."
And equating pride with self-esteem, she asked, "How can you have too much self-esteem?"
Well, how about when it leads to conceit, overconfidence and solipsism?
Tyler's statements are an extreme example, but this is where overuse of the pride slogan is headed. And
although it's frightening to think that anybody in a position of leadership in gay politics could actually
believe that we are gloriously advancing on all fronts against an enemy whose tactics we can ignore, we
can take some comfort in the fact that questions about the pride strategy are becoming more widespread,
and harder to dismiss.
Today the questions are less about what other people will think of us -- does whipping the slave boys
down Main Street send the right message? -- than what we think of ourselves. Do constant exhortations
to gay pride encourage us to become self-absorbed?
As Dan Savage has recently argued, pride wasn't counted as one of the Seven Deadly Sins for nothing.
"The fwap of rainbow windsocks is making us dull and slow," he writes. "Thirty years after the antidote
arrived, gays and lesbians stand in renewed danger of being poisoned. The poison threatening us now
isn't shame, however, it's pride ... we'll never be truly whole until gay people are neither crippled by
shame nor addicted to pride."
Raising questions about whether pride is still effective is emphatically not to say that gay people need to
tone down, fit in and ask bigots for acceptance. Most gay people, after years of pressure not to "flaunt it,"
are rightly leery of any suggestion that we should "assimilate." But we can't rule out consideration of a
more sophisticated approach that allows us to become even more forceful and assertive about the need
for equality.
In the reevaluation that this requires, we need to admit that pride isn't always helpful anymore. In some
cases, in fact, it simply gets in the way. Like fabulous versions of Soviet parades to commemorate the
October revolution, pride celebrations prop up the memory of a victory that, while no less important, is
less and less relevant.
I started to understand the problem with pride through a conversation in an airport. The last flight of the
night to my destination, Atlanta, had been canceled, and while I was in line for a hotel voucher, a straight
guy named Will struck up a conversation with me.
For every gay person, daily life means coming out to strangers if you're not going to lie or go to absurd
lengths to avoid the subject. So when my conversation with Will turned to why I was going to Atlanta -- my
boyfriend lived there at the time -- I told him.
For a second, Will looked like he was afraid I would kiss him right there on the moving sidewalk. He
thought he had been talking to just another ordinary guy in his mid-20s, not somebody gay. And to make
matters worse for poor Will, he had even asked me to dinner at the airport restaurant.
To his credit, Will recovered quickly, and he asked if I'd mind answering some questions about what it's
like to be gay. I didn't mind, but I was caught off guard by what he asked over the next hour. He was
polite, curious and candid, but his questions were surprisingly negative. One of them was, "Why would
anybody be proud to be gay?"
I don't know if Will -- a recent college graduate, a friendly enough guy and kind of a dude -- had ever seen
a pride parade, but he had certainly heard all the politically correct explanations about gay pride and they
made no impression on him. Or rather, they made the wrong impression. He continued to think that for
some reason, gay pride meant that gay people are strangely proud of something alien and bizarre, like an
illness or a bad habit.
Will was not a fire-breathing homophobic lunatic, he was just a guy who didn't know what he was talking
about. Lots of talk about pride -- the cornerstone of gay politics -- hadn't changed what he thought he
already knew. But a more direct approach, highlighting the discrimination that gay people still face, did.
The fact is that the concept of pride remains useful, but it's crucial to ask who it's useful for. It's useful to
us to help counteract the shame of the closet, and it's a nice pat on the back for being honest about who
we are. But people like Will -- and there are millions of them, and they can vote -- don't get it. Talk to antigay conservatives (as I make a point of doing, if for no other reason than a kind of clinical curiosity), and
over and over again what you'll find is that they misinterpret the idea of gay pride.
At first it's easy to think, "Well, fuck them if they're not comfortable with out-and-proud sexuality." This is
dangerous and unnecessary. It's true that we'll never reach the rabid anti-gay kooks, but writing off
average people like Will assures that millions who might be persuaded to help us -- or who at least might
be vaccinated against inflammatory anti-gay rhetoric -- will remain obstacles to overcome. These are
basically well-intentioned people who are doing what's "right" based on the wrong premise. Shake up that
premise and it gives them pause. It even, occasionally, changes their minds.
Pride can't do this because it doesn't take into account their false assumptions about us. The problem
with pride is not that it's too in-your-face, but that it's not in-your-face enough. It doesn't state clearly what
the gay-rights movement is really all about: equal legal and social treatment for lesbians, gay men and
bisexuals. The "gay pride" slogan doesn't reach people who don't already know the facts of sexual
orientation. In fact, the rallying cry of pride may even have helped provoke the backlash against us.
The language of gay pride reinforces the idea that gay people are fundamentally different -- an
impression to avoid if we can, given the way anti-gay conservatives portray our human rights as "special
rights." In everyday speech, people use the word "pride" to talk about things they believe are special,
extraordinary and exclusive. Talking too much about pride, therefore, can be counterproductive. Gay
people base our claim to civil rights on the fact that our sexual orientation and our relationships are no
different -- no more worthy of shame or pride -- than anyone else's.
Endless declarations about pride also reinforce negative stereotypes. Talking too much about pride can
give the impression that we have something to prove, and that we still can't quite put the shame of the
closet behind us. As Savage says, "Surrounding oneself with constant reminders to feel prideful is to
constantly be reminded of shame ... American gays and lesbians act like cancer patients who, having
been cured, remind themselves that they aren't sick anymore by dropping by the hospital every once in a
while for a little chemotherapy."
The good news is that more and more of us are putting the shame of the closet behind us -- but this
means that pride-based celebrations have less and less to offer. It's not that we're "unproud" of what's
been accomplished, and we're grateful to those who blazed the trail. We owe them, but we also recognize
that their efforts have paid off. We don't question our basic self-worth anymore.
Yet pride-based activism, with its constant doses of self-esteem, implies that the problem is never getting
any better, and that we're all going to need pride pep talks and a rainbow-colored I.V. drip for the rest of
our lives. That's not just depressing, it's not true. We're OK. Let's talk about something else.
What might a movement more focused on equality than pride look like? Well, nobody at the time knew
exactly what Stonewall would lead to either, but a shift to a strategy that emphasizes equality instead of
pride could be just as significant.
Gay equality -- which wouldn't be a bad replacement for the "gay pride" slogan -- would be more open to
people who are "not proud," whether they are simply gay people who are over the need for self-esteem
therapy, or straight people who support gay rights but see little point in participating in typical pride
celebrations today.
As it is, lots of us continue to show up every year at pride celebrations out of habit. We usually have a
good time, but we have only a vague idea of why we're there anymore. Showing support and being
counted is all well and good, but take away the party -- we might even go so far as to call gay pride month
"gay party month" -- and there wouldn't be much left.
There's no reason why we can't have a party -- and do we know how to throw one -- but it's a PR disaster
if a party is the main way in which we as a group bring ourselves to the attention of society every year.
The focus on gay pride ends where a focus on equality would begin. Pride has become an event in June,
and a mantra the rest of the year. Equality is a cause.
A focus on gay equality could also change our thinking.
It would move us beyond the oddly passive "we're here, we're queer, get used to it" aspect of current
pride celebrations. The fact is that we want people to do a lot more than get used to us. We want them to
help us get the equality we deserve. Current pride celebrations are, at best, a roundabout way of
motivating anybody to do that.
Finally, a new slogan like "gay equality" would help to make absolutely clear what we're after: legal and
social equality.
When our message to the rest of society is "gay pride," people who aren't already on our side can
comfortably ignore it and continue to think, "Who cares if the queers are proud?" If the focus instead were
on "gay equality," these same people would be forced to argue that we either already have equality or
don't need it. Those are arguments they cannot win, and often don't even feel comfortable making.
Pride helped get us where we are today. We're in a better position than ever to put tough questions to the
people who aren't on our side yet, and to set the terms of this debate. But whether we are proud has
become politically irrelevant, and this is no cause for alarm. The fact that we're outgrowing the need for
pride is the biggest testament to its success.
How Do You Solve the Problem of Sharia? Canada grapples with the
boundaries of legal multiculturalism.
By Dahlia Lithwick Posted Friday, Sept. 10, 2004, at 2:55 PM
This week has seen protests around Canada—and at Canadian Embassies worldwide—as citizens
grapple with an issue that blurs the boundary between religious tolerance and oppression. The Ontario
government is considering a proposal to allow certain family law matters—including divorce, custody, and
inheritance—to be arbitrated by panels of Muslim clerics. Supporters of the proposal say that Canada's
commitment to cultural diversity requires that Muslim law be accorded the same respect as other legal
systems. Opponents say Muslim law inherently conflicts with the basic freedoms guaranteed Canadians.
Marion Boyd, Ontario's former attorney general, has been appointed by Ontario Premier Dalton McGuinty
to determine the appropriateness of these sharia, or Islamic law, tribunals. She's in a tough spot.
Ultimately, the question comes down to whether sharia is fundamentally different from other religious
codes. And making that sort of determination should not be the responsibility of any democratic
The plan to use formal panels of imams and Muslim scholars to resolve family-law disputes is neither
radical nor subversive. For one thing, Canadian imams have been informally using sharia law to settle
disputes between Muslims for years. For another, a 1991 Ontario law known as the Ontario Arbitration
Act permits Orthodox Jews and Christians to submit to voluntary faith-based arbitration. These
agreements are then ratified by secular civil courts, so long as their rulings conform to Canadian law, and
both parties were willing participants.
Ontario Muslims have merely sought to officially reap the benefits of the Arbitration Act, leaving the
Ontario government with two unpleasant alternatives: They must either scrap the act altogether or
unearth some principled justification for allowing some religious citizens, but not Muslims, to benefit from
its protections. The question somehow comes down to whether sharia is too inherently sexist to be
reconciled with Canada's civil rights laws. And if anything definitive can be said about sharia, it's that no
such definitive pronouncements can be made.
It's probably no surprise that some religious groups find themselves in the strange position of
wholeheartedly embracing the wonders of sharia. For instance, this week B'nai Brith Canada endorsed
the tribunals. And while Canadians are deeply divided over this matter, no one is more divided than the
Canadian Muslim community. The Muslim Canadian Congress urged the Ontario government to reject the
tribunals, describing sharia as uncodified, racist, and unconstitutional. The Canadian Council of Muslim
Women similarly says, "We want the same laws to apply to us as to other Canadian women." But Syed
Mumtaz Ali—the lawyer demanding that sharia be made available under the Arbitration Act—last month
declared that Muslims cannot live under secular law alone: "Every act of your life is to be governed by
[sharia]. If you are not obeying the law, you are not a Muslim. That's all there is to it."
If you hear echoes here of religious citizens of the United States who claim they cannot be asked to abide
by any secular law that conflicts with God's law, you'll begin to grasp the problem: How does a liberal
democracy permit unfettered religious freedom without eventually becoming a theocracy?
Sharia is a centuries-old system of justice based on Quranic law, and while it includes general provisions
about the importance of justice and equality, as practiced throughout the world it has been used to justify
stonings, the flogging of rape victims, public hangings, and various types of mutilation. In her weird and
provocative book, The Trouble With Islam, Canadian commentator Irshad Manji reminds us that on
average, two women die each day in Pakistan from "honor killings" (a husband's revenge for adultery,
flirtation, or any perceived sexual shaming) and that, in Malaysia, women may not travel without the
written consent of a male. Saudi Arabian women may not drive. Moreover, under sharia, male heirs
receive almost double the inheritance of females. Spousal support is limited from three months to one
year, unless a woman was pregnant before she was divorced. Only men can initiate divorce proceedings,
and fathers are virtually always awarded custody of any children who have reached puberty.
Still, supporters of sharia tribunals in Canada have strong arguments—in addition to claims of basic
fairness suggesting that if Catholics and Orthodox Jews can have divorces settled by religious courts,
fundamentalist Muslims must be allowed to do the same. They insist that these religious arbitrations are
voluntary. No one is forced into religious courts. They say that if a party to an arbitrated agreement is
dissatisfied, she may always ask the civil courts to overturn it. And proponents urge that this is an
opportunity to reform and revitalize sharia; creating a hybrid of Canadian-style freedoms and traditional
Perhaps most important, supporters of these tribunals argue that any aspect of sharia that conflicts with
the Canadian Charter of Rights and Freedoms would simply not be enforceable by the tribunals. The
charter expressly provides that "Notwithstanding anything in this Charter, the rights and freedoms referred
to in it are guaranteed equally to male and female persons." Worries about a subclass of impoverished
women and their abandoned children are misplaced, they insist, as is xenophobic hysteria over stonings
or polygamy. Such measures violate the laws of Canada and are simply not available to sharia panels.
Truth be told, it's pretty hard to tease out a meaningful objection to sharia panels under these
circumstances. If participation is indeed purely voluntary, if all agreements are reviewable by civil courts, if
parties are already submitting to these panels informally anyhow, and if any provision that violates the
Canadian civil rights laws is null and void, what do Muslim and feminist groups find so appalling? At
worst, some kind of toothless sharia-lite will govern. At best, a more equitable, kinder, gentler sharia may
be forged.
But Canadian feminists argue that there is no such thing as purely voluntary arbitration. They insist that
isolated immigrant women with limited English are coerced into appearing before sharia panels and never
advised of their rights. Refusal to abide by the dictates of these panels results in being shunned in the
Muslim community. Supporters of the panels, including B'nai Brith, say this problem can be easily solved
by educating women about their rights under the law and enacting protections and safeguards into the
arbitration process, including female arbitrators and formal records.
This raises another objection to sharia: Unlike other forms of religious law, there is little consensus on any
standardized interpretation. It's hard to advise women about their rights under a set of rules that are
always subject to reinterpretation. Inadvertently setting his cause back a few steps, Mohammed Elmasry
of the Canadian Islamic Congress—another group endorsing sharia in Ontario—recently claimed that:
"There are only a handful of scholars in Canada who are fully trained in interpreting and applying Sharia
law—and perhaps as few as one." All of which makes the sharia panels sound less like a court than a
Magic Eight Ball. Elmasry confirmed that point when he added cheerfully that: "The arbitrators use gut
feeling, they use common sense, and in many cases they are successful."
Despite this protest, it is hard to distinguish sharia law as uniquely more sexist, homophobic, or
misogynistic than other religions. The brutal truth is that there are sexist and homophobic aspects to most
religious law—including Orthodox Jewish and Christian law. (Indeed, some Orthodox Jewish women have
used this period of review to question the appropriateness of grafting Jewish law onto the Ontario civil
laws in the first place.)
Certainly anyone can waive the right to have a court settle a civil dispute, and religious Canadians have
every right to submit privately to tribunals of any religious stripe to mediate their differences. The question
is whether the state should be putting its imprimatur on these negotiated agreements.
This Canadian fondness for multiculturalism at any cost stands in stark contrast to the French approach
to religious diversity. Last week, the French government began enforcing its controversial new ban on the
wearing of overtly religious symbols—Muslim headscarves, large crosses, yarmulkes—in public schools.
French democracy now means that everyone must subordinate their religious differences to their French
citizenship, whereas Canadian multiculturalism means the civil law must bend and bend again to
accommodate religious differences—even where those religious differences violate the spirit of Canadian
equality. Somehow, the Canadians are prepared to sell the farm, while the French will settle for shooting
all the animals.
When an official government policy of diversity and tolerance gives its official thumbs up to any legal
system—Jewish, Muslim, or Martian—fraught with judgment and intolerance, the consequence is a legal
hall of mirrors: A system of laws equally protecting the rights of religious minorities to treat one another
The latest civil rights disaster, Ten reasons why reparations for
slavery are a bad idea for black people -- and racist too. By David
May 30, 2000 | It began as a fringe proposition favored by the politically extreme. But the idea that
taxpayers should pay reparations to black Americans for the damages of slavery and segregation is no
longer a fixation of the political margin. It is fast becoming the next big "civil rights" thing. Rep. John
Conyers, D-Mich., has already introduced legislation to set up a commission that would examine the
impact of slavery as a foreordained prelude to some kind of legislated payback. (Conyers will become
chairman of the Judiciary Committee if Democrats win back the House.) A coalition of African-Americans
is claiming a debt of $4.1 trillion. A coalition of African nations is claiming a debt of $777 trillion against an
assortment of governments including the United States.
Distinguished black intellectuals like Henry Louis Gates have given the idea their imprimatur, while
Randall Robinson, who led the successful boycott movement against South Africa a decade ago, has
written a strident, anti-white, anti-American manifesto called "The Debt: What America Owes to Blacks,"
which has become a bible of the reparations cause.
Nor is it just in the realm of ideas that the payback demand is gaining ground. Last week, the Chicago
City Council voted 46-1 in favor of a reparations resolution. The lopsided nature of the vote persuaded
Mayor Richard Daley to apologize for slavery (in Chicago?), thus joining what has become a familiar and
unseemly ritual of contrition for the Clinton-era left. The primary sponsor of the resolution, Alderwoman
Dorothy Tillman, has announced she is going to organize a "national convention" to push the issue of
reparations in the coming year.
So what is wrong with the idea? In truth, just about everything. Examined closely, the claim for
reparations is factually tendentious, morally incoherent and racially incendiary. Logically, it has about as
much substance as the suggestion that O.J. Simpson should have been acquitted because of past racism
by the criminal courts. Its impact on race relations and on the self-isolation of the African-American
community is likely to be even worse.
If the reparations idea continues to gain traction, its most obvious effect will be to intensify ethnic
antagonisms and generate new levels of racial resentment. It will further alienate African-Americans from
their American roots and further isolate them from all of America's other communities (including whites),
who are themselves blameless in the grievance of slavery, who cannot be held culpable for racial
segregation and who, in fact, have made significant contributions to ending discrimination and redressing
any lingering injustice.
1. Assuming there is actually a debt, it is not at all clear who owes it. Tillman articulated the argument for
the existence of the debt this way: "America owes blacks a debt because when we built this country on
free labor ... wealth was handed down to the white community." Robinson reaches back in time even
further: "Well before the birth of our country, Europe and the eventual United States perpetrated a
heinous wrong against the peoples of Africa and benefited from the wrong through the continuing
exploitation of Africa's human and material resources." To sustain this claim, Robinson's book devotes
entire sections to the alleged depredations of whites against blacks hundreds and even thousands of
years before the "eventual United States" -- i.e., the government that is expected to pay the reparations -was even created. It is necessary to insert the qualifier "alleged" because, like so many who wave the
bloody shirt, Robinson makes little effort to establish causal responsibilities, but invokes any suffering of
blacks where whites were proximate as evidence that whites were to blame.
Slavery itself is the most obvious example. It was not whites but black Africans who first enslaved their
brothers and sisters. They were abetted by dark-skinned Arabs (since Robinson and his allies force us
into this unpleasant mode of racial discourse) who organized the slave trade. Are reparations going to be
assessed against the descendants of Africans and Arabs for their role in slavery? There were also 3,000
black slave owners in the antebellum United States. Are reparations to be paid by their descendants too?
2. The idea that only whites benefited from slavery is factually wrong and attitudinally racist. By accusing
the U.S. government of crimes against black people in advance of its existence, Robinson reveals the
ugly anti-white racism beneath the surface of many arguments for reparations, especially his. According
to this line of reasoning, only white Americans are implicated in slavery, just as only whites are the
presumed targets of the reparations payback. Both presumptions, however, are wrong.
If slave labor created wealth for all Americans, then obviously it created wealth for black Americans as
well, including the descendants of slaves. Free blacks in the antebellum United States surely benefited
from the free labor of slaves, along with whites. Are they to be exempted from payment of the debt just
because they are black?
But if the "free labor" argument of the reparations claimants is correct, even the descendants of slaves
have benefited from slavery. The GNP of black America (as black separatists constantly remind their
followers) is so large that it makes the African-American community the 10th most prosperous "nation" in
the world. To translate this into individual realities, American blacks on average enjoy per capita incomes
in the range of 20 to 50 times those of blacks living in any of the African nations from which they were
What about this benefit of slavery? Are the reparations proponents going to make black descendants of
slaves pay themselves for benefiting from the fruits of their ancestors' servitude?
3. In terms of lineal responsibility for slavery, only a tiny minority of Americans ever owned slaves. This is
true even for those who lived in the antebellum South, where only one white in five was a slaveholder.
Why should the descendants of non-slaveholding whites owe a debt? What about the descendants of the
350,000 Union soldiers who died to free the slaves? They gave their lives. What possible morality would
ask them to pay (through their descendants) again?
4. Most Americans living today (white and otherwise) are the descendants of post-Civil War immigrants,
who have no lineal connection to slavery at all. The two great waves of American immigration occurred
after 1880 and after 1960. Is there an argument worth considering that would, for example, make Jews
(who were cowering in the ghettos of Europe at the time) or Mexicans and Cubans (who were suffering
under the heel of Spain) responsible for this crime? What reason could there be that Vietnamese boat
people, Russian refuseniks, Iranian refugees, Armenian victims of the Turks or Greek, Polish, Hungarian
and Korean victims of communism should pay reparations to American blacks? There is no reason, and
no proponent of reparations has even bothered to come up with one.
5. The historical precedents generally invoked to justify the reparations claim -- that Jews and JapaneseAmericans received reparations from Germany and the United States, respectively -- are spurious. The
circumstances involved bear no resemblance to the situation of American blacks, and are not really
precedents at all. The Jews and Japanese who received reparations were individuals who actually
suffered the hurt.
Jews do not receive reparations from Germany simply because they are Jews. Those who do were
corralled into concentration camps and lost immediate family members or personal property. Nor have all
Japanese-Americans received payments, but only those whom the government interned in camps and
who had their property confiscated. The reparations claims being advanced by black leaders seem to
imply that the only qualification required for reparations is the color of one's skin. Robinson's book is
pointedly subtitled "What America Owes to Blacks." If this is not racism, what is?
6. Behind the reparations arguments lies the unfounded claim that all blacks in America suffer
economically from the consequences of slavery and discrimination. It would seem a hard case to prove
over a 150-year (or even 50-year) gap, and the only evidence really offered by the claimants is the
existence of contemporary "income disparities" and "inequalities" between the races. No actual
connection (as far as they're concerned) need be made. On the other hand, African-American success
stories that contradict the conclusion are abruptly dismissed.
Thus, to take the most obvious case, Oprah Winfrey may have been a sharecropper's daughter in the
most segregated of all Southern states, but -- victim of slavery and segregation or no -- she was still able
to become one of the 400 richest individuals in America on the strength of her appeal to white consumers.
This extraordinary achievement, which refutes the reparations argument, is echoed in millions of other,
more modest success stories, including those of all the prominent promoters of the reparations claim,
even the unhappy Robinson. No wonder the only argument against these obvious counterfacts is that all
successes must be exceptions to the (politically correct) rule.
But the reality is that this black middle class -- composed exclusively of descendants of slaves -- is also a
very prosperous middle class that is now larger in absolute terms than the black underclass, which is
really the only segment of the black population that can be made to fit the case. Is this black middle-class
majority -- numbering millions of individuals -- really just a collective exception of unusual people? Or
does its existence not suggest that the failures of the black underclass are failures of individual character,
hardly (if at all) impacted by the lingering aftereffects of racial discrimination, let alone a slave system that
ceased to exist well over a century ago?
West Indian blacks in America are also descended from slaves, but their average incomes are equivalent
to the average incomes of whites (and nearly 25 percent higher than the average incomes of Americanborn blacks of all classes). How is it that slavery adversely affected one large group of descendants but
not the other? And how can government be expected to decide an issue that is so subjective -- yet so
critical -- to the case? The fact is that nobody has demonstrated any clearly defined causal connection
between slavery or discrimination and the "disparities" that are alleged to require restitution.
And how, by the way, are blue-collar whites and ethnics expected to understand their reparations
payments to these African-American doctors, lawyers, executives and military officers who make up the
black middle class?
7. The renewed sense of grievance -- which is what the claim for reparations will inevitably create -- is
neither a constructive nor a helpful message for black leaders to be sending to their communities.
Virtually every group that has sought refuge in America has grievances to remember. For millions of
recent immigrants the suffering is only years behind them, and can be as serious as ethnic cleansing or
How are these people going to receive the payment claims from African-Americans whose comparable
suffering lies in the distant past? Won't they see this demand as just another claim for special treatment,
for a rather extravagant new handout that is only necessary because some blacks can't seem to locate
the ladder of opportunity within reach of others, many of whom are even less privileged than they are?
Why can a penniless Mexican, who is here illegally and unable even to speak English, find work in
America's inner cities while blacks cannot? Can 19th century slavery or even the segregation of 50 years
ago really explain this?
To focus the social passions of African-Americans on what some Americans did to their ancestors 50 or
150 years ago is to burden this community with a crippling sense of victimhood. It is also to create a new
source of conflict with other communities.
A young black intellectual wrote the following comments about reparations: "I think the reparations issue
will be healthy. It will show all Americans (white, Hispanic, Asian) how much blacks contributed to helping
build this country." Actually, as Robinson's book makes clear, what it will accomplish is just the opposite.
It will provide black leaders with a platform from which to complain about all the negative aspects of black
life -- to emphasize inner-city pathologies and failures, and to blame whites, Hispanics and Asians for
causing them.
How is this going to impress other communities? It's really just a prescription for sowing more racial
resentment and creating even greater antagonism.
8. This raises a point that has previously remained off the radar screen, but will surely be part of the
debate to come: What about the "reparations" to blacks that have already been paid? Since the passage
of the Civil Rights Acts and the advent of the Great Society in 1965, trillions of dollars in transfer
payments have been made to African-Americans, in the form of welfare benefits and racial preferences
(in contracts, job placements and educational admissions) -- all under the rationale of redressing
historical racial grievances.
In fact, reparations advocates already have an answer to this argument, and it is a revealing one. Here is
how Robinson refers to this massive gesture of generosity and contrition on the part of the white political
majority in America during the past 35 years: "It was only in 1965 ... that the United States enacted the
Voting Rights Act. Virtually simultaneously, however, it began to walk away from the social wreckage that
centuries of white hegemony had wrought." Take that, white, Hispanic and Asian America! If a trilliondollar restitution and a wholesale rewriting of American law and fundamental American principle in order
to accommodate racial preferences and redress injustice are nothing, then what will fill the claimants' bill?
9. And this raises another question that black leaders might do well to reflect on: What about the debt
blacks owe to America -- to white Americans -- for liberating them from slavery? This may not seem like a
serious question to some, but that only reveals their ignorance of the history of slavery and its fate.
Slavery existed for thousands of years before the Atlantic slave trade was born, in virtually all societies.
But in the 1,000 years of its existence, there never was an anti-slavery movement until white Englishmen
and Americans created one. If not for the anti-slavery attitudes and military power of white Englishmen
and Americans, the slave trade would not have ended. If not for the sacrifices of white soldiers and a
white American president who gave his life to sign the Emancipation Proclamation, blacks in America
would have remained slaves indefinitely.
If not for the dedication of Americans of all ethnicities and colors to a society based on the principle that
all men are created equal, blacks in America would not enjoy the highest standard of living of blacks
anywhere in the world, and indeed one of the highest standards of living of any people in the world. They
would not enjoy the greatest freedoms and the most thoroughly protected individual rights. Where is the
gratitude of black America and its leaders for those gifts?
10. The final and summary reason for rejecting any reparations claim is recognition of the enormous
privileges black Americans enjoy as Americans, and therefore of their own stake in America's history,
slavery and all.
Blacks were here before the Mayflower. Who is more American than the descendants of African slaves?
For the African-American community to isolate itself even further from America would be to embark on a
course whose consequences are troublesome even to contemplate. Yet the black community has had a
long-running flirtation with separatists and nationalists in its ranks, who must be called what they are:
racists who want African-Americans to have no part of America's multiethnic social contract. This
separatist strain in black America's consciousness has now been joined with the anti-Americanism of the
political left to form the animating force behind the reparations movement.
In this regard, Robinson -- himself a political leftist -- is a movement archetype. Anti-white sentiments and
anti-American feelings stand out on every page of "The Debt," including a chapter he devotes to praising
Fidel Castro, one of the world's longest-surviving and most sadistic dictators. A rhapsody for Fidel
Castro's Marxist police state would seem a bizarre irrelevance to a book on reparations for American
blacks, except that for Robinson, Castro is a quintessential victim of American "oppression." Robinson
despises America that much. "Many blacks -- most perhaps," he asserts in his discussion of Castro, "don't
like America." Is Robinson saying they prefer Castro's gulag?
This unthinking, virulent anti-Americanism is the crux of the problem the reparations movement poses for
black Americans, and for all Americans. The reparations idea is about not liking America. It is about an
irrational hatred of America. It is about holding America responsible for every negative facet of black
existence, as though America were God and God had failed. Above all, it is about denying the gift
America has given to all of its citizens through the inspired genius of its founding.
To Robinson, Thomas Jefferson, author of the proclamation that "all men are created equal," was merely
"a slave owner, a racist and -- if one accepts that consent cannot be given if it cannot be denied -- a
rapist." The fact that Americans still honor the author of the Declaration of Independence makes his
personal sins into archetypes that define America. Robinson: "Does not the continued un-remarked
American deification of Jefferson tell us all how profoundly contemptuous of black sensibilities American
society persists in being? How deeply, stubbornly, poisonously racist our society to this day remains?"
This hatred for America and, specifically, for white America blinds Robinson -- and those who think like
him -- to a truth far more important than Jefferson's dalliance with Sally Hemings, which may or may not
have been unwilling. (Contrary to Robinson, consent obviously can be given, even if it cannot be denied.)
For it is the words Jefferson wrote, and that white Americans died for, that accomplished what no black
African did: They set Robinson's ancestors free.
For all their country's faults, African-Americans have an enormous stake in America and above all in the
heritage that men like Jefferson helped to shape. This heritage -- enshrined in America's founding and the
institutions and ideas to which it gave rise -- is what is really under attack in the reparations movement.
This assault on America, conducted by racial separatists and the political left, is an attack not only on
white Americans but on all Americans -- African-Americans especially.
America's black citizens are the richest and most privileged black people alive -- a bounty that is a direct
result of the heritage that is under attack. The American idea needs the support of its African-American
citizens. But African-Americans also need the support of the American idea.
Dredging up a new reason to assault this idea is not in the interest of African-Americans. What would
serve the African-American community better would be to reject the political left as represented by people
like Robinson, Jesse Jackson and every black leader who endorses this claim. What African-Americans
need is to embrace America as their home and to defend its good: the principles and institutions that have
set them -- and all of us -- free. | May 30, 2000
About the writer
David Horowitz's odyssey from '60s radical to cultural conservative is described in his autobiography,
"Radical Son." He is the president of the conservative Center for the Study of Popular Culture in Los
Angeles and the editor of FrontPage Magazine. For more columns by Horowitz, visit his column archive.
The price of pain
The co-author of a book on Holocaust reparations talks about blood money, the
importance of apologizing and the slavery reparations movement.
-----------By Suzy Hansen
July 15, 2002 | In 1995, Rabbi Israel Singer, the fiery secretary general of the
World Jewish Congress, launched the now-famous campaign for Holocaust
restitution. Singer, along with billionaire Edgar Bronfman, started pressuring
Swiss banks -- many of which hoarded the dormant accounts of Holocaust
victims, feeding billions of dollars into the Swiss economy -- to release those
funds to the survivors. But Singer, whose Austrian Jewish parents were once
forced by the Nazis to scrub the streets of Vienna, had a much grander plan. As
John Authers and Richard Wolffe explain in "The Victim's Fortune," their intricate account of the global
fight for the repayment of Holocaust debts, Singer "hoped the battle with those who had profited in
Switzerland would lead to a historical reckoning for Holocaust crimes throughout Europe."
Along with American lawyers and politicians who brought class-action lawsuits and threatened economic
sanctions, Singer largely succeeded. Grudgingly, Swiss, German and Italian companies reopened their
books and faced ugly pasts. Some insurance companies had refused to pay out policies to survivors'
heirs. Banks used victims' cash to trade in the stock market. Companies such as DaimlerChrysler and
Volkswagen had profited from slave labor. None of them wanted to pay; fewer would ever issue a formal
And, ultimately, despite the billion-dollar agreements and promised compensation that resulted from the
campaign, many survivors ended up profoundly unhappy with the process. As coauthor Richard Wolffe,
the Washington deputy bureau chief for the Financial Times, explained in a recent interview, the belief
that victims should be paid for their suffering is a modern and complicated one. What does a $7,500
check really do for a Holocaust survivor?
The conclusion of the obviously painful process of getting the companies to pay wasn't the end of the
survivors' suffering either. Many of them still haven't seen a dime, and infighting among Jewish groups
about what to do with the millions, maybe billions of dollars left over still plagues the campaign. Authers'
and Wolffe's book raises another haunting question: Who is entitled to speak for a victim?
Wolffe spoke to Salon from Washington about whether some survivors will ever get a check, how some of
the money has gone to corrupt causes and what the Holocaust debts crusade means for future
reparations cases.
Before the lawsuits of the '90s, why do you think Holocaust reparations hadn't become a big
Individuals had gone after their own accounts and their families' life insurance policies without much
success. The compensation agreements that had happened before were individual offers and either they
were pretty low, or, as in most cases, the banks or the insurance companies or the institutions
stonewalled. They said, "Show us a death certificate," which of course the concentration camps didn't
issue. The companies just wanted to push the whole issue aside.
Where there had been historical studies, they really significantly downplayed or underestimated the
amount of money that was at stake or hidden or kept aside. A lot of people had simply been told to go
away. Most importantly, there wasn't the political willpower to do something. The Western governments
were more interested in fighting the Cold War and didn't really push it so hard. Even on the official war
crimes stuff -- Nuremberg -- a lot of the charges were dropped. For instance, one of the key things in the
book is about German industry. A lot of German industrialists were classified as war criminals and the
charges were dropped.
Because the West was more interested in building up the German economy and using it as a buffer
against the Soviet bloc. And they also had this myth that the German economy had been razed to the
ground, when actually a lot of it survived and prospered and was in a good position to benefit from the
Cold War. So it suited a lot of people [to leave the compensation issue alone]. Also, it suited the American
Jewish community, which was the prime mover behind the [Holocaust compensations fight]. The
American Jewish community was more interested in Israel and issues of survival.
The final thing is that the Holocaust survivors themselves were not as visible a presence in the immediate
years after the war. It really took until the '70s for people to start thinking of the war in terms of the
Holocaust. It was at that moment, when a "new" generation burst on the scene -- the children of the
survivors and the children of the war criminals -- and started to revisit the war years, that the Holocaust
raised itself in people's consciousness.
Once the American Jewish community scored some big successes with things like the campaign to free
Soviet Jewry in the '80s, they showed they could flex their muscles. Then, the end of the Cold War
allowed this whole new kind of international politics through the '90s where the U.S. government was
prepared to take a leading role.
So how instrumental do you think the Clinton administration was? Do you think it would have
been different had this been attempted during another administration?
They were very influential. I wouldn't overstate it, in the sense that they weren't the only political figures to
get involved or to exert crucial power. But there's no question that if Edgar Bronfman [president of the
World Jewish Congress] hadn't had such a good relationship with the Clinton White House, and with the
first lady in particular, then the whole weight of the U.S. government would not have been brought to bear
on this issue. In particular, they opened up this big historical investigation, and they ended up mediating
and brokering several deals, especially the German deal. Also, there was the whole Clinton
administration's focus on human rights and corporate responsibility and the global economy.
But just as important, if maybe more important, were the state and local officials who exerted a
tremendous amount of direct pressure. In the Swiss case, the U.S. government role sort of collapsed. The
administration mediation failed. But these kind of obscure regulators and officials at the state and local
level were the ones who really worried the companies and forced them in many ways to pay up.
So you're talking about people like New York City Comptroller Alan Hevesi?
Alan Hevesi, right, and the New York state banking people. You're seeing something similar in the
insurance cases right now where state insurance regulators are the ones who have the power to really
worry the companies. That brings them to the negotiating table. You have to remember: None of these
companies want to pay. None of them said, "You're right. We did something wrong. We've never faced up
to this -- here's the money." There needs to be that pressure.
How much did the 1999 New York City boycott of Swiss banks suspected of holding the assets of
Holocaust victims affect their decision to face up to this?
Oh, it really worried them. The Clinton administration always said that it didn't support sanctions, but
privately, they were very pleased that someone was out there threatening sanctions. They didn't want
them to go ahead but the threat of sanctions was very, very effective. And that's what we're seeing all the
way through with this.
If a European company has a presence in America, or maybe is looking for a presence in America, these
kinds of things make them go haywire. It's a very effective way to make them face up to something. It puts
a value on these historical human rights issues because they can see that it will cost them something.
And that's also what those class-action lawsuits do.
One of the biggest things for me in the book is: How do you put a price on suffering? These kind of
sanctions help to do so. It's not a perfect way, but it does give the company a way of saying, "This is how
much it's worth to us."
This was a problem within the Jewish community as well. Before the '90s, some of the survivors
saw reparations from Germany as blood money.
Yes, and in the '90s, in the German case, the big difference is really between the different kind of
survivors -- between the Jews and the non-Jews. That was really emotional and really quite ugly because
many on the Jewish side, including the Jewish lawyers, said there was a conflict between these two
different groups of victims. The Germans just thought they were all victims. That caused a tremendous
amount of racial and ethnic stereotyping. On the Jewish side, they felt that Central and Eastern
Europeans who were also victims had been anti-Semitic and on the side of the Germans at one time.
That was deeply insulting to some of the Central and Eastern Europeans, some of whom were Jewish
Then you scroll forward to where we are currently; there is a big difference of opinion in how a lot of the
money should be spent. And whether it should go to Israel or not. It's not just in the German case; it really
affects the debate about what to do with the money that's left over. There's going to be millions, maybe
billions, left over from this process because survivors can't be traced or they're dead. There's a big battle
yet to come about how to spend that money. Should it go to Israeli projects? Should it go to needy victims
who have been paid once but could do with more? Should it go to memorials or monuments or
education? And who spends the money?
Who is controlling the money at this point?
It depends on the settlement. In the Swiss case, it's really in the control of a U.S. judge in New York,
Judge Korman. The Germans, on the other hand, didn't want any of their taxpayers' money or corporate
money to be in the control of a U.S. court, so it's in the hands of a German foundation which has some
American and Jewish representation on that. There's a big pool of money from the insurance funds that
hasn't been released; it's in limbo. The French government is holding on to its own cash. Some of it is
earmarked for international organizations like the World Jewish Congress or the Claims Conference, but
a lot of it is still to be disbursed. It's not as if the judge is going to hold onto this money if it's not spent by
the end of this process. Those are really difficult problems to address. It took them something like three
years to come up with a plan for simply how to divide up the Swiss money between the different groups of
victims, and many people were not happy with that.
It's costing so much and yet some people haven't been paid, right?
Yes, the people who have really profited are the researchers and accountants who've done a lot of work
looking through the archives. The Swiss audit cost around $600 million alone. It's the most expensive
audit in history -- going to companies like Arthur Andersen, who are really deserving, and others. The
insurance case [which addresses the issue of unpaid insurance policies of Holocaust victims], for
instance, is still rumbling on. Lawrence Eagleburger, the International Commission on Holocaust Era
Insurance Claims chairman, is drawing a salary of $360,000 a year. He's made a million dollars since he's
started his work and, frankly, very few people have been paid.
At the end of the book, you say that the survivors have ended up being the unhappiest in all this.
Is it possible that some of them will not get any money at all?
They're unhappy for two reasons. For start, a lot of people have been frustrated. They thought they had
really good claims. I was talking to one survivor the other day with an insurance claim. Remarkably, she
still has the paperwork of her father paying a premium to a life insurance company. It's really rare for that
kind of document to survive. The insurance company says, "Well, I'm sorry, we don't have our records of
this policy, so it didn't exist."
But the bigger issue is that money was at the center of all of this. People were looking for money
compensation all along; without the money, it would have just been an apology, and people would have
thought that that was insufficient. But when they received the money, people were ultimately extremely
disappointed. I think it's something about money and suffering.
In some cases, it's because the money is really pretty limited. The German compensation deal was $5
billion. That's a lot of money, but when you divide it up by several hundred thousand people, the
maximum pay out for the concentration camp victims was $7,500. Maybe any sum of money would be
unsatisfactory. I just think there's something about the process of compensation that we kind of expect in
today's society. We expect to be paid for our suffering. But for something like this, and maybe for all kinds
of suffering, when you actually get the money, it's a severe disappointment.
Do you think that if the corporations or governments had issued a formal apology that it would be
different? Maybe if they hadn't put up such a fight?
It would have made a huge difference. Absolutely. In Germany, there was a public statement by the
German president and that really helped survivors a lot. Ultimately, the survivors were more interested in
the fight and the struggle to get their story retold and their suffering understood. That kind of recognition
was the most important thing for them.
Many countries didn't want to issue an apology. The Swiss government never got involved and that's
deeply disappointing for the survivors. It's disappointing from an observer's point of view that there was no
reconciliation. A public apology does help to educate people again.
Do you think that bringing this issue to light and reinvigorating interest in this issue was the main
thing that motivated Israel Singer, the feisty secretary general of the World Jewish Congress,
whose efforts, along with Edgar Bronfman's, were largely responsible for this whole thing?
I think so. He certainly wanted the money because that got people to take him seriously. But definitely the
fight was a big part of it. This is a guy who learned his political skills in the civil rights movement and the
whole Holocaust compensation process was another civil rights march. His particular desire was to
confront people and he's very confrontational. He wanted to get people worked up, angry, passionate.
And yes, he wanted a resolution. He wanted one more round of compensation. It's almost like the last war
crimes trials -- there's only that tiny window left before the last survivor dies. And he knew this was his
moment. Some people said he was in it for himself and he wanted the money. One thing was for sure: An
organization run by Edgar Bronfman, with all of his billions of dollars, doesn't really need the money.
Does it hurt the cause that Jewish organizations want to see the money go to "world Jewry" rather
than just to the survivors?
It is hurting the cause. It's a bit like the victims' families of Sept. 11. They have a huge amount of public
sympathy, they have the most important claim to this money and they also have a lot of political power
because of that public sympathy. You ignore their voices at your peril. Rather arrogantly, these Jewish
organizations claim to represent world Jewry -And all 6 million who died.
Yes. Bronfman famously said he was there representing the people who died. Well, I mean, for a start,
there's the old joke that you put 10 Jews in a room and you hear 30 opinions. There is very little
agreement among Jewish groups around the world about what to do with this kind of thing. And to say
you're speaking for people who died -- many survivors think that's incredibly distasteful.
On the other hand, no one else is doing it. They're filling a vacuum. And without them, you're in the
situation that the African-American [reparations] community's in -- without a political voice or political
leadership. But they're not democratic, it's not as if someone said to them -- "you represent us." That is a
problem, a big problem.
Should all the money go to the people who survived to the present day? Many survivors obviously have
died of natural causes since the war. Maybe these Jewish groups, if it's spent in the right way, will spend
the money on the kind of reconciliation projects that I mentioned -- on education and museums. Maybe.
But what kind of things could it be going to?
In the insurance case, for example, Generali, an Italian company, paid a lot of money to a foundation in
Israel. The money was diverted into pet projects and, frankly, it was used for corrupt causes such as
dental care for the ultra-Orthodox in Israel. It's horrific. Rather than to Holocaust survivors in Israel of
which there are many. So some of these Jewish groups have appalling records and some of these newly
created foundations have been hijacked by people with vested interests.
Have American and Israeli survivors been better compensated than other survivors? Has there
been a disparity there?
That was one of the most emotional disputes. The German companies wanted to pay the survivors in
Eastern Europe much less than American survivors because they said the cost of living is so much higher
in America and so much lower in Eastern Europe that to pay them the same was a waste in resources.
Pretty early on, the Jewish groups established that this is a very important issue and survivors
everywhere should be treated equally. So the $7,500 obviously means a whole lot more to someone in
Central or Eastern Europe because it goes so much further.
Also, a lot of the Jews in Eastern Europe never received any compensation because the West wouldn't
allow any transfer of funds to the East during the Cold War. And you would have had to be suicidal to go
to the Communist authority and said, "I owned a factory," or "I had a Swiss bank account," you know, "I'm
a capitalist, please give me compensation." So these people are often receiving compensation for the first
time. All of these people are elderly and have very few resources but when you go to Eastern Europe the
level of need is much greater than it is in general in America. But the amounts going, in theory, are equal.
When this process settles down, a lot of the extra funds, the funds left over, are going to go to some of
these survivors, really the forgotten survivors in the former Soviet countries.
Do you think that there will be survivors who will not get money?
No. I think everyone who makes a claim will get money of some kind. It may be a pittance compared to
what they've lost, maybe insultingly small levels. One principle that the Germans established was that if
people had received any level of compensation in the past for property or insurance policies, no matter
how small, they couldn't claim again. A lot of survivors will feel very disappointed and frustrated with that.
The kind of payment they accepted in the '60s -- combined for their suffering, for their years in the camps
and for all the property they'd lost -- may have been very, very small even then, but that was all that was
on offer. The principle was established that if you had money at all at any stage at all for that kind of
claim, then that's tough.
How does it work for survivors' heirs?
It depends on the issue. In the case of insurance, you're talking about heirs, because the policies were
insuring the lives of people who died in the camps. Swiss bank accounts, the same, really.
Where it's confined to living survivors is German slave and forced labor. So in that case, the families get
nothing. There's a huge practical difficulty in tracing families because you get multiple claims from the
same family for the same victim. There are big disputes over the names of the individuals. For example,
there are dozens of variations of the name Isaac. In some cases, the companies like to raise the issue of
family members who lie about the existence of other family members. They like to say it's all fraudulent
because Auntie Eden never told us that another sibling had claimed 20 years ago. There are these family
complications that make the whole heir question very difficult. And expensive.
Particularly with Switzerland and France, people had to look at their historical records once again.
It challenged the Swiss' sense of themselves as a neutral country. Did that have a significant
effect on how they treated this issue? It wasn't just about money it seems.
Their first reaction was always hostile. They always said, go away you horrible Americans, who the hell
do you think you are telling us what to do? But it ultimately led, after the emotions died down, to most of
these countries opening up historical commissions. They looked again at their own war record and many
of them were shocked at what they found. That was certainly true in France's and Switzerland's cases.
The reactions of a lot of these executives -- who are not war criminals themselves -- may have been at
best insensitive and at worst a coverup, but many of them thought that they were acting out of good
intentions. When they found out what had happened, when they discovered the real record, they were
shocked to find that their own bank had spent victims' money and knowingly, in some cases, traded the
bank account cash on the stock market. It was a shock to many of these countries and it was ultimately
really healthy -- the process of confronting the past. They didn't like it, they didn't want to do it, they had to
be dragged kicking and screaming, but what they discovered is a real eye-opener to successive
generations. In France, there are a lot of records that were still out there that people never looked at.
In the case of France, some of the French Jewish leaders felt that the Americans were debasing the
Holocaust by going after reparations this way. That issue has come up, and maybe most famously with
Norman Finkelstein.
Do you believe that as Jews they really felt that way or do you attribute it more to anti-American
It was both. The French Jewish community is very substantial, and it's also very French. Very proud and
independent and all the rest of it. However, they also were both horrified and inspired by what people like
Israel Singer were doing. They were inspired in the sense that it made them more confident, more ready
to stand up and be vocal. And they were also horrified because they thought they were caught in the
middle between anti-Semitism at home and anti-Americanism and that they would be associated with the
Americans ... which is almost worse than being associated with Jewish people. Anti-Americanism is a
very strong trait in French politics.
Having said that, they were very, very smart. They played a good cop, bad cop routine: "You better work
with us or we will unleash our American cousins on you." And to the American side, they were saying,
"Hold on, we're the ones that are going to suffer anti-Semitism, we're the ones caught in the middle here,
you back off." So they just about held it together. They played it very cleverly. I have a lot of admiration for
those people and as you know from recent news reports, anti-Semitism is alive and well in France and
the French government's reaction to it isn't always reassuring for the French Jewish community.
Do you think that this whole issue revived anti-Semitism in Europe? You do say in the book that
anti-Semitic cartoons popped up in Switzerland.
I'm European and I'm Jewish as well, and I have to say, if you say "Jew" to many people in Europe ...
"Jew" is used as a term of abuse, to mean someone who is miserly and obsessed with money. I had that
growing up. So the idea that Jews would go out campaigning for money does reinforce the very worst
stereotypes and racial insults.
However, the American Jewish community is right in many ways: By being confident and being brash, if
you will, you actually flush the ugly sentiments out into the open. It's only when they're in the open that
you can really confront them. And that's the civil rights message that Israel Singer brought: Anti-Semites
cause anti-Semitism. It's not Jews that cause anti-Semitism. You only know you're confronting an antiSemite when you go out there in public and you hear this stuff. There's a lot of political correctness in
Europe where people know that it's wrong or they speak in code or speak amongst themselves about
their anti-Semitic feelings. This whole campaign certainly did flush out some of the worst of it. I don't think
it ever could get rid of it. But at least people know what they were up against.
Having said that, the Jewish communities in Europe are by and large much smaller and don't have the
same political power [that American Jews do]. The pressure to assimilate is much greater. I don't think it's
possible to do what the American Jews have done, which is to become very vocal, very public. The role
models aren't there. The public Jewish figures are very few and far between. In American life, they're
everywhere. But ultimately it was a very healthy process and it has made a lot of the European Jewish
community much more self-confident.
Do the Holocaust compensation agreements serve as a model for African-American reparations?
One of the problems with African-American slavery reparations is that there are no living plaintiffs. That's
a legal problem as well as a practical problem. But as I understand it, many of the lawyers in the
reparations cases are broadening it way beyond slavery to include segregation-era claims and even
internationally, now, to include apartheid in South Africa, to make it a melting pot of racial claims. That's
useful because they have some living plaintiffs there and it increases the pressure on some of these
corporations and the pool of corporations that are likely to pay.
I know from speaking to some of the African-American lawyers involved that they really are deeply
encouraged by what they saw in the Holocaust cases. It's all part of this modern idea of the necessity of
compensation. We're seeing that with Pan Am 103, the Lockerbie bombing, where compensation figures
are huge. They're seen as being central in terms of bringing some kind of closure to the legal process and
the suffering that these victims' families have endured.
It's an essential part of modern life in a way that I don't think it was 20 to 30 years ago. That's one reason
why many of the Holocaust victims didn't want to accept money when it was offered by Germany the first
time around. They thought that it would be absolving them of their guilt, they thought it was blood money,
they didn't want anything to do with it. Now the consensus among people who've suffered this kind of
thing is you have to pay money. Without the money there's no sincere apology.
But what do you think is one of the main differences between Holocaust settlements and slave
reparations in terms of the possibility of success? In many ways, they seem worlds apart.
Politics. For a start, the African-American political groups are not as well organized and they don't have
the same kind of access to Washington that Jewish groups have. They've come to this issue later, and
obviously the history is just much more complicated. They definitely don't have access to this White
House in the same way that Jewish groups had access to the Clinton White House. In fact, I don't think
the Jewish groups have the same kind of access to the Bush Oval Office as they did to the Clinton Oval
Office. The politics is really important.
Having said all that, state and local officials can play a big role here. Some of the changes in local and
state legislation that were brought about for Holocaust survivors have equal application to the slavery
cases. For instance, in California they've changed insurance legislation to allow claims including slavery
and it was prompted by the Holocaust issue. But it adds to the power of insurance regulators in the state
to review the historical record and say, unless insurers have dealt with their past and with these human
rights claims, they may not have the license to trade in their state. That's a huge club to hold over these
companies' heads. Although the African-American groups don't have the same power in Washington, I
can see them exerting more important power at the local levels.
Since you've published the book, have there been any significant developments in the Holocaust
Not significant, but there have been some interesting ones. The U.S. judge in the Swiss case fired the
panel of people who were dealing with claims in the Swiss case. They won a quarter billion settlement in
August 1998 and only something like $16 million has been paid out. The insurance case is still going
slowly, Lawrence Eagleburger is still spending lots of money.
Why do you think he has handled this so poorly?
I don't just blame him. They've lost sight of what they wanted to do, which was to help the victims' families
quickly. They've gotten bogged down in their own politics, their own bureaucratic mess, their own
personal rivalries. They used to fly first class and stay in luxury hotels, and fly dozens of delegates around
the world. His basic attitude was -- it's the companies' money, not the victims'. Well, up to a point, that's
true, but if the companies don't spend it on administration costs then they're going to spend on the
Also, he wasn't muscular enough in terms of knocking heads together. The companies on the other side
are just stonewalling. Basically it's only this Italian company, Generali, that has really stepped up to the
plate. The others are dragging their heels. And on the victims' side, there hasn't been a political
leadership as there was with Israel Singer. They've ended up bickering between the Israelis and the
Americans and the Europeans. I just think they've all lost sight of what they wanted to do -- which was to
look after the survivors and the families and get this settled quickly.
Does the amount of money that these companies and banks have to pay affect their bottom lines
at all?
Minimally, it does. Generally, these companies don't have budgets for this kind of thing so it does affect
their bottom line, but it actually affects them more in terms of their public image and the management time
they have to spend dealing with it. People just don't know anything about many of these companies, and
suddenly they hear them in the context of the Holocaust and they think of them as war criminals. And I
think you're going to see something very similar with slavery reparations. Who knew of Aetna? I suspect
that many of Aetna's customers don't even know that they're insured by Aetna.
Have any of the businesses suffered? Would you even be able to quantify the impact?
Let me put it like this. Allianz, which is this big German insurer, is one of the highest-profile companies
involved with both the insurance case and the German settlement. Now, is it a coincidence that Allianz
advertises enormously on American TV, not using its American brands but using its German corporate
name, Allianz? There's awareness at corporate headquarters that the name Allianz has been dragged
through the mud and, particularly among Americans, they need to rehabilitate themselves. And Allianz
isn't going to rehabilitate itself by explicitly saying, look, we paid lots of money for the war. So that has
had an impact and that's obviously costly for them. In that sense, they've suffered.
Another point of suffering -- even though the stock market just isn't the same anymore -- is that mergers
and acquisitions were the big problem that European companies faced through the '90s. For example,
they would try to buy an American company and their deals were being held up by state and local
regulators because of the Holocaust issue.
Next time around, they might face the same thing again. It might make them reluctant to come into
America. They believed that this was a global economy and corporations were free to what the hell they
liked. That's quite a positive thing. The global economy has allowed people to look at the human rights
issues and say, you have to have a clean house wherever you trade in the world.
Racist Like Me. Why am I the only honest bigot?
By Debra Dickerson, Aug. 11, 2004
In a nation riven to its very core by race, I appear to be the only remaining
racist. Off and on, I'm homophobic and anti-Semitic, too, but mostly, I'm
racist. Yet unlike the rest of you, I'm honest about it.
I'm the only person I know who routinely admits to being a racist. When I
redeemed my Mother's Day spa package, I was assigned a lovely young
black woman as my aesthetician. As we chatted, I found myself searching
for words. Eventually, I realized I was trying to find a way to ask about her
credentials. In 20 years of spa trips, I have never had a black aesthetician,
and I have never thought, let alone asked, about one's competence, even
when they disappoint me. It appears that I, too, think black people are
stupid, uninformed, and graceless. Criminal, too—day before yesterday,
after finalizing the details of working in a public housing complex, I dreamt
that night of herds of rapacious, animalistic blacks robbing, assaulting, and
generally terrorizing me there. (Birth of a Nation was more subtle.) So, counting yesterday's incident,
which I will recount shortly, that makes twice just this week that I was a racist.
It was yesterday's incident that got me thinking about how racism is lived. The New York Times recently
won a Pulitzer for a series on how race is lived, but that's not quite the same thing, is it? Most of us agree
that racism is far from dead and that we're all responsible for helping to end it. And yet, so charged is the
issue of race that it is virtually impossible for those who do not already agree about it to discuss it.
Without a free exchange of ideas, progress is not very likely; conservatives will continue to preach to their
choir and liberals will do the same.
Here's an example: A gay friend was being cavalier and dismissive, I thought, about the least divergence
from the gay agenda, even by a pro-gay person like me. He wouldn't even entertain the notion that, say,
lesbians in a women's locker room could legitimately give one pause. It shouldn't be a long pause (given
that they've always been there), but give me a break. From the look on his face, you'd have thought that I
had said he was going to sodomite hell. "Oh Debra. From you?" I argued that a man would never be
allowed into a women's locker room—even if he were physically incapable of either sex or violence (I also
made him blind for good measure). My friend sighed deeply, looked to the heavens as if praying for
patience, and then grandly "forgave" me by abruptly changing the subject. Clearly, he considered any
such discussion homophobic, a designation I escaped solely on the strength of our friendship. But why
couldn't we discuss it? The notion that "victim" status exempts him from the need to examine, explain, or
defend his beliefs is a dangerous one indeed. That was the perfect moment both to prove to himself that
he'd thought things through, and to educate someone who could go forth and spread knowledge. Instead,
we just showed each other that you can love and respect someone and yet know that they can
sometimes be self-righteous, intolerant, and anti-intellectual.
One reason for bigotry's maddening intractability is that a determination—however knee-jerk, superficial,
or unthinkingly made—that something or someone is racist ends the discussion, as happened with my
friend. The verdict is "guilty" and the only punishment is forfeiture of the right to consider yourself a decent
human being. Better to be a necrophiliac than an admitted bigot. Yet if we are to evolve on the issue of
race, the notion that you, or someone else, is racist ought to function as the beginning of the attainment of
full humanity, not the proof that you've relinquished it. Realizing with each incident that I was operating
from a no-longer-quite-subconscious script about race allowed me to recognize, and then confront, the
hateful notions I have internalized about blacks. Worse, it allowed me to see that having experienced
racism had helped turn me into one: It turns out that I have a problem with whites, too.
Yesterday, I watched a white man park his truck in my driveway and walk off down the road without even
a glance to see if the owners were about so he could ask permission. The sense of entitlement and
ownership he exuded pushed every race-, gender- and class-based button a black girl from the inner city
has to push. Guys like that have been pushing the world (read: me) around forever. Still, I tried to shrug it
off. Then, when I went out for the mail two hours later, I was furious to see his truck still on my property. In
full Gloria Steinem meets Fannie Lou Hamer mode, I marched down the road to the construction site
where I figured he'd gone.
At the site, a gaggle of "Joe College"-type shirtless white boys were goofing off, and a grandfatherly black
man halfheartedly directed nonexistent traffic. As I approached, the black man perked up, glad to see me
in this extremely white part of an extremely white city in an extremely white region. Or perhaps he was
glad because now he wasn't the only adult. The white guys, suddenly busy with their rakes, feigned
"Whose truck—"
The black man strode over and pointed gleefully at the man who was clearly in charge. "The green hat!
That's his truck." How had he known what I was going to say?
With happy spite, the black man watched as I exchanged a few words with my squatter and saluted me
as the man who must be his boss followed me shamefacedly to move his truck. As I passed the brother, I
said evilly, "If I'd parked on his property, the police would be here."
"You got that right," he agreed grimly, as if I'd narrowly escaped the noose. It's a wonder we didn't flash
each other black power salutes. But the moment the words were out of my mouth, I was ashamed.
Worse: I felt stupid.
Who am I kidding? I'm an attorney. The lots are so big in my deer-filled suburb that I had to drive from
neighbor to neighbor to collect petition signatures for a local election. In fact, we rarely even use that
usurped driveway because we have two. My architect husband is white as are our two children. (So far.
Biracial kids often darken over time.) The local police are just as respectful of me as they are of my
neighbors, whatever they might be thinking. Whether or not I should fear them, I don't.
It is a testament to the enduring legacy of racism that a black grandfather still doing manual labor
bothered to side with either me or my squatter. He should have said to hell with the both of you and
played dumb, leaving the two of us to fight over our possessions. I'm guessing he'd also witnessed his
feudal lord take arrogant possession of a stranger's property and that this had pushed all his buttons, too.
The fact that I turned out to be black was the icing on the cake.
In a way, I'm arguing for class warfare to replace racial warfare. Class conflict makes sense; it keeps the
powerful from riding roughshod over senior citizens who can't retire from manual labor in the hot sun. The
truth is, I have far more in common with the rich white man than I do with that poor black grandfather
(who would never dare to park on private property in this neighborhood). A world of perfect harmony
would be lovely, but until the rapture comes I'd rather blue-collar types of all races faced off against us
"suits" than one race against the other. There is nothing logical, natural, or beneficial about a world
organized by race—the very concept is irrational. Any system divided along racial lines, implicitly or
overtly, will be immoral, inefficient, and unstable. (Take, for example, poor whites' hatred of slaves, rather
than of slavery, for depressing wages.)
Class conflict, on the other hand, is natural and rational. It brought us the minimum wage, OSHA, Social
Security, the weekend, overtime, pensions, and the like. While none of those are unmitigated successes,
a system organized along class lines acknowledges that capitalism doesn't police itself and that labor
must have a voice—it wasn't the capitalists who pushed for child labor laws and the eight-hour work day.
Everybody loses when societal goods are distributed on the basis of race, even those in the front of the
bus. Bigotry is just plain stupid, but as long as the price of examining one's prejudices is expulsion from
the human race, we're never going to be able to quash it.
When I realized that I had internalized the world's loathing of blacks, my first response was,
counterintuitively, relief. Finally, I have proof that blacks' obsession with racism isn't crazy. If I secretly
think that many poor blacks are animalistic and stupid, you'll never make me believe that lots of other
people don't, too. My lasting response has been chagrined amusement to realize that I hold such
ridiculous, illogical notions. Most of all, acknowledging my own racism has given me a measure of
compassion for how difficult it is to retain one's humanity in such a politicized and inhumane world. I'm
black and I make my living thinking about race, but I still wasn't immune to the insidious bigotry in our
world. How much harder it must be for those with far less time to contemplate and come to terms with
these vexing social issues.
It's not bigotry per se that hamstrings us in the struggle to achieve a just society. It's our inability to talk
about and think our way through our preconceptions. We have to learn how to forgive each other, and
more importantly ourselves, when we're stupid.
What is an Uncle Tom?
Uncle Tom is a derogatory term for a black person who is obsequiously servile to white authority, eager
to win the approval of white people, or who rubber stamps white supremacist notions about the inherent
superority of whites and its corrollary -- the inherent inferiority of blacks. "Uncle Toms" are perceived to
take the side of whites when there is an injustice against blacks. The term Uncle Tom comes from the title
character of white author Harriet Beecher Stowe's novel Uncle Tom's Cabin.
The book's Uncle Tom demonstrates an honorable grace and dignity, his story of suffering being similar
to that of Job, from the Bible. Tom is pitying of Simon Legree, for Legree's fearful enslavement to his
wickedness; despite his wealth, he is poor in spirit by comparison to faithful, old Tom. Most blacks,
however, object to Tom's passivity, willing subservience and complete lack of outrage at his enslavement,
and to Stowe's paternalism in the portrayal of the loyal, patient, long-suffering Tom. They view the
author's prose as patronizing, condescending, stereotypical, and emasculating. The depiction of Tom in
the popular stage version of the novel also was greatly influential in popular perception of Tom as a
servile, white-haired, shuffling slave who was grateful to his master.
Essentially, the accusation of being an Uncle Tom or Tomming questions the accused person's integrity,
or courage, or both. The implication is that the person is demeaning him- or herself or acting against the
interests of blacks, generally, for their own personal benefit, out of fear, or simply because they have
been brainwashed to be complicit in their own oppression. A "Tom" can be someone judged to be
insufficiently outraged by, or inadequately engaged in opposition against, a status quo of white privilege
and black disadvantage. Sometimes, the term is applied to individuals who simply are perceived, rightly
or wrongly, as being needlessly accommodating of whites.
During slavery, Tomming could be a cunning subterfuge. White masters often gave well-liked and trusted
slaves coveted, less physically demanding duties to perform. "Faithful" bondsmen and women also
tended to be watched less closely, allowing them opportunities to escape to freedom or engage in
clandestine acts of defiance. A Tomming fieldhand who had been bullwhipped might have an opportunity
to set crops on fire. An outwardly happy and generous cook whose husband or children had been sold
away from her might exact a slow and agonizing death from her master by lacing his food with finely
ground glass.
This practice of masking defiance or rage with acquiescence and civility continues today. As in years
past, Tomming can be a means of appropriating and preserving a degree of private autonomy in the face
of social prejudice and institutionalized racism, an act of subversion -- or even an over-the-top, satirical or
mocking response to race prejudice.
Sometimes, women who Tom are called Aunt Jemima after the popular pancake mix that long depicted a
kerchief-headed family cook of that name.
A roughly equivalent term is Oreo, from the chocolate sandwich cookie with white filling (implying that one
is black on the outside but white on the inside). Coconut has the same meaning.
What Is a "Hate Crime"?
Eve Gerber, Posted Friday, Aug. 13, 1999, at 7:25 AM PT
When Buford O. Furrow Jr. confessed to shooting several Jewish children, he reportedly told lawenforcement officials that he wanted to send "a wake up call to America to kill Jews." He has been
charged with six "hate crimes," which makes him eligible for the death penalty under California law. What
is a hate crime?
Like many legal terms, "hate crime" does not mean what it seems to. If you kill your mother-in-law
because you hate her, that is not a hate crime. Hate crimes are crimes motivated by racial, religious,
gender, or other prejudice. Hate crime laws generally impose tougher punishments when crimes such as
rape, arson, assault, intimidation, and damage of property are motivated by bias. Forty-one states and the
District of Columbia have hate crime laws. The definition of a hate crime varies. Twenty-one states
include mental and physical disability in their lists. Twenty-two states include sexual orientation. Three
states and the District of Columbia impose tougher penalties for crimes based on political affiliation.
Some states require that bias-motivation be a substantial factor in a crime; others require it to be the sole
factor. The federal Hate Crimes Sentence Enhancement Act of 1994 increases maximum sentences for
crimes committed because the victim was engaged in activities such as attending public school. In 1996
Congress made it a federal crime to burn a house of worship. If passed, the Hate Crimes Prevention Act
of 1999 would increase the federal role in prosecuting hate crimes.
Some scholars believe hate crime laws are unwise or even unconstitutional. They argue that criminals
should be punished for their crimes, not for their motives, and that making a particular belief--even a
repugnant one--a factor in sentencing violates the First Amendment. But the Supreme Court unanimously
rejected this argument in 1993.
The Real American Love Story, Why America is a lot less white than it
By Brent Staples, P osted Tuesday, Oct. 5, 1999, at 12:28 AM PT
The PBS broadcast last month of An American Love Story--a 10-hour film about an interracial family-spawned a great deal of chatter to the effect that mixed-race couplings were the wave of the future. In
fact, they are the wave of the past. Interracial marriages accounted for only 2.2 percent of all marriages in
the Current Population Survey of 1992, a gain of only two-tenths of a percent over 1980, and the number
of mixed couplings actually decreased slightly in 1991. The census pattern suggests that slightly more
interracial couples will fall into each other's arms in the coming years but that there will be nothing
resembling a dramatic acceleration of marriage across the color line.
But America already has almost 400 years of race mixing behind it, beginning with that first slave ship
that sailed into Jamestown harbor carrying slaves who were already pregnant by members of the crew.
Americans have grudgingly accepted the fact that sex between masters and slaves such as Thomas
Jefferson and Sally Hemings was frequent, leading to a many-hued race of people who do not look
African at all, even though they call themselves "African-American." Outside of recent African immigrants
to the United States, there are virtually no black Americans of purely African descent, which is to say no
black people who lack white ancestry, left in this country.
Four centuries of race mixing have had a similar impact on Americans who define themselves as white.
Convincing estimates show that by 1950 about one in five white Americans had some African ancestry.
This inheritance most often arrived at the bedroom door in the form of a fair-skinned black person who
had slipped over the color line to live as white. Put another way, most Americans with African blood in
their veins think of themselves as white and conduct themselves as such--and check "white" when they fill
out census forms.
How did so much "black" blood get into so many "white" people? Consider the story behind the 1967 case
of Loving vs. Virginia, in which the Supreme Court overturned laws in 17 states that forbade black people
and white people to marry. Richard Loving was white and Mildred Jeter was black. In 1958, weeks after
the two were married, the Caroline County sheriff dragged them from their marriage bed and jailed them
for the crime of being married. The Lovings were then exiled from Virginia under pain of imprisonment. In
banishing the couple from the Old Dominion, the Caroline County judge said from the bench: "Almighty
God created the races, white, black, yellow, Malay, and red and placed them on separate continents, and
but for the interference with his arrangement there would be no cause for such marriages. The fact that
he separated the races shows that he did not intend the races to mix."
This statement would have been ludicrous anyplace but was especially laughable in Caroline County-and in the Lovings' hometown of Central Point, which had been an epicenter of race mixing for at least
200 years. There were many such centers in the South. In cities such as Charleston, S.C., and New
Orleans, for example, white families and their fair-skinned black relatives lived so close together that they
bumped into each other on the street. Mixed-race people were initially treated as a "new people" who
existed in the space between white and black and deserved a status not quite as high as whites but
higher than that of black people in general. This special status began to dry up just before the Civil War
and evaporated when slavery ended and free blacks competed with whites for jobs and political power.
White Southerners became obsessed with drawing an impossible line that would preserve white "racial
purity"--another way of referring to white political dominance. The "one-drop rule" defined as black
anyone who had any black ancestry at all, even if that ancestry was invisible to the naked eye or in the
genealogical record. Those who fell on the black side of the law often lost the rights to vote, to hold highstatus jobs, and to defend their persons and property in the courts.
The revocation of special mulatto rights accelerated the practice of passing for white. Central Point was
locally known as the "passing capital of the world." Passing for white was so common there that a section
of Central Point had actually been named "Passing.'' Some Central Pointers lived as negroes at home but
crossed the line to seize white privileges just an hour or two away in Richmond, Va. Local children were
often taken for white during excursions to nearby towns, where they shopped in stores that did not serve
blacks and were admitted to the "white only" sections of movie houses.
Having learned the rewards of whiteness early, these children grew up, moved away, and continued the
charade. Those who entered the armed forces, which were segregated until 1948, were often classified
as white and attached to all-white units. This made for dicey moments when brown-skinned classmates
from Central Point turned up in all-black units. Some of these former classmates kept the secret, but a
few exposed the passers as frauds. Neither Britain nor France had laws that forbade interracial marriage,
and people in those countries had no clue what the Yanks were going on about when they argued over
who was really white or really black. To the French and the British, race was defined by what you looked
like: If you looked white, well then, you were.
Back in Caroline County, soldiers who were
passing were sure to travel home alone to
prevent their white buddies from knowing who
and what they were. The passers from Passing
married white spouses, moved into white jobs,
took up residence in white neighborhoods. When
the couples returned to Central Point to visit, the
town went along with the masquerade. Families
ditched brown-skinned friends and relatives, and
children stayed out of school to avoid being seen
on the colored bus headed to the colored school.
Principals and teachers stuck to the script. One
of them told Ebony magazine in 1967 that blacks
in Central Point had "infiltrated the white race
more than any other group of Negroes. When a
student plays hooky from school for a week and says an in-law is visiting the family, we understand. The
kids just can't afford to catch the Negro school bus without giving away the racial identity."
This infiltration was common not just in Virginia but all over the United States. The most interesting
document listed in the amicus briefs for Loving vs. Virginia is a statistical study called "African Ancestry of
the White American Population" by Robert Stuckert, a sociologist and anthropologist from Ohio State
University. Stuckert's statistical models are tough going, but eye-opening for what they show. Simply put,
he examined census and fertility data to arrive at estimates of how many white Americans had African
blood lines and how many fair-skinned blacks had crossed over the line to live as white. Stuckert's tables
show that during the 1940s alone, roughly 15,550 fair-skinned blacks per year slipped across the color
line--about 155,500 for the decade. Stuckert estimates that by 1950 about 21 percent of the whites--or
about 28 million of the 135 million persons classified as "white" in the census--had black ancestry within
the last four generations. He predicted that the proportion would only grow in the coming decades. The
belief that one's ancestors are "racially uniform" is a basic American fiction, Stuckert wrote, but a fiction
Blood Simple, The politics of miscegenation.
By Eric Liu, Posted Thursday, Aug. 22, 1996, at 12:30 AM PT
The "Negro problem," wrote Norman Podhoretz in 1963, would not be solved unless color itself
disappeared: "and that means not integration, it means assimilation, it means--let the brutal word come
out--miscegenation." Coming after a lengthy confession of his tortured feelings toward blacks--and
coming at a time when 19 states still had anti-miscegenation statutes on the books--Podhoretz's call for a
"wholesale merging of the two races" seemed not just bold but desperate. Politics had failed us, he was
conceding; now we could find hope only in the unlikely prospect of intermarriage.
Podhoretz's famous essay was regarded as bizarre at the time, but 33 years later, it seems like prophecy.
We are indeed intermarrying today, in unprecedented numbers. Between 1970 and 1992, the number of
mixed-race marriages quadrupled. Black-white unions now represent 12 percent of all marriages involving
at least one black, up from 2.6 percent in 1970. Twelve percent of Asian men and 25 percent of Asian
women are marrying non-Asians. Fully a quarter of married U.S.-born Latinos in Los Angeles have nonLatino spouses. We are mixing our genes with such abandon that the Census Bureau is now considering
whether to add a new "multiracial" category to the census in the year 2000. This orgy of miscegenation
has not yet brought the racial harmony for which Podhoretz longed. But recent publicity about the
intermarriage figures has stirred hope once again that our racial problems might be dissolving in the gene
The Census Bureau's "multiracial" proposal has provoked strong reactions from civil-rights activists who
fear that many African Americans will defect to the new category, thus diluting black political power. But
the debate, properly framed, is not just about "light flight" from the black community. The debate is about
our very conception of race. For a "multiracial" box would be an admission that the five points of our
modern-day "ethno-racial pentagon" (black, white, Asian, Hispanic, Native American) are not fixed or
divinely ordained, but fickle and all too man-made.
Race, you see, is a fiction. As a matter of biology, it has no basis. Genetic variations within any race far
exceed the variations between the races, and the genetic similarities among the races swamp both. The
power of race, however, derives not from its pseudoscientific markings but from its cultural trappings. It is
as an ideology that race matters, indeed matters so much that the biologists' protestations fall away like
Copernican claims in the age of Ptolemy. So the question, as always, is whether it is possible to break
that awful circle in which myth and morphology perpetually reinforce one another.
The leaders of the fledgling multiracial movement say that their category, and more broadly, their lives,
represent the way out. By marrying across the color line, by raising mixed-race children without regard to
labels, they promise to obliterate our antiquated notions of racial difference. As a newlywed who has
recently joined their ranks, I hope they're right. When the time comes, I won't want to infect my ChineseScotch-Irish-Jewish children with bloodline fever. I won't force them to choose among ill-fitting racial
uniforms. That said, though, there are plenty of reasons to wonder whether intermarriage can ever, as
one partisan put it, "blow the lid off of race."
Foremost is this reality: Racialism is highly adaptive. That is, no matter how quickly demographic change
proceeds, we seem to find a way to reinvent and sustain our jerry-rigged pigmentocracy. A case in point
is the term "Hispanic." Ever since this category was added to the census in 1977, we've been told that
"Hispanic" is merely a linguistic category, that Hispanics "can be of any race." Today, amid a boom in the
Hispanic population, we hear that caveat the same way smokers read the surgeon general's warning. The
story of the last 20 years is the way heterogenous Hispanics--who ought to have exposed the flimsiness
of racial categories--became just another homogenous race. The square peg, by our thinking, had been
rounded off.
Will this happen to "multiracials"? Their numbers are still small. Despite the quadrupling of multiracial
marriages since 1970, only 5 million people today qualify--and that's counting racially distinct parents as
well as their mixed-race kids. This may not be enough of a critical mass for multiracials to become a race
of their own. Moreover, multiracials have less reason to cohere than Hispanics ever had; they include
every conceivable combination of races, and they are not bound together by language. Still, in a nation
accustomed to thinking of "official races," they'll feel pressure to form an interest group: multiculturalism's
latest aggrieved tribe.
One possibility is that all multiracials, over time, will find themselves the intermediate race, a new
middleman minority, less stigmatized than "pure" blacks (however defined) but less acceptable than
"pure" whites. Their presence, like that of the "coloreds" in old South Africa, wouldn't subvert racialism; it
would reinforce it, by fleshing out the black-white caste system. Again, however, the sheer diversity of the
multiracials might militate against this kind of stratification.
Yet this same diversity makes it possible that multiracials will replicate within their ranks the "whitemakes-right" mentality that prevails all around them. Thus we might expect a hierarchy of multiracials to
take hold, in which a mixed child with white blood would be the social better of a mixed child without such
blood. In this scenario, multiracials wouldn't be a distinct group--they would just be distributed across a
continuum of color.
Sociologist Pierre van den Berghe argues that such a continuum is preferable to a simple black-white
dichotomy. Brazilians, for instance, with their mestizo consciousness and their many gradations of tipo, or
"type," behold with disdain our crude bifurcation of race. Yet no amount of baloney-slicing changes the
fact that in Brazil, whitening remains the ideal. It is still better for a woman to be a branca (light skin, hair
without tight curls, thin lips, narrow nose) than a morena (tan skin, wavy hair, thicker lips, broader nose);
and better to be a morena than a mulata (darker skin, tightly curled hair). Subverting racial labels is not
the same as subverting racism.
Still another possibility is that whites will do to multiracials what the Democrats or Republicans have
traditionally done to third-party movements: absorb their most "desirable" elements and leave the rest on
the fringe. It's quite possible, as Harvard Professor Mary Waters suggests, that the ranks of the white will
simply expand to engulf the "lighter" or more "culturally white" of the multiracials. The Asian American
experience may offer a precedent: As growing numbers of Asian Americans have entered the mainstream
over the last decade, it is increasingly said--sometimes with pride, sometimes with scorn--that they are
"becoming white."
We could thus end up with three reconfigured races. In the "black" box: black-black offspring. In the
"mixed" box: black-Latino, black-Asian, black-white, and Latino-Asian kids. In the "white" box: white-white,
white-Asian, and perhaps white-Latino issue. Absurd? One need only recall the baroque lexicon of
"quadroons" and "octoroons" to know the absurd uses to which our powers of taxonomy can be put.
These cautionary scenarios demonstrate that our problem is not just "race" in the abstract. Our problem is
the idea of the "white race" in particular. Scholar Douglas Besharov may be right when he calls multiracial
kids "the best hope for the future of American race relations." But even as a "multiracial" category blurs
the color line, it can reaffirm the primacy of whiteness. Whether our focus is interracial adoption or mixed
marriages or class-climbing, so long as we speak of whiteness as a norm, no amount of census
reshuffling will truly matter.
We return, then, to the question of politics. Perhaps we should abolish all racial classifications. Perhaps
we should supplement the five-race scheme with a "None-of-the-Above" category. Perhaps we should
replace affirmative action with a class-based alternative. Perhaps we need a leader of mixed heritage-say, Colin Powell--to educate the public about the realities of race. Whatever it takes, though, we need to
do more than marry one another if we are ever to rid our minds of color-consciousness. "The way of
politics," Podhoretz lamented a generation ago, "is slow and bitter." Indeed. But it is the only lasting way.
Our ideology of "blood," like blood itself, is too fluid, too changeable, and too easily diverted to be remade
by lovers alone.
The Legal Fiction of "Diversity" Good intentions and the unraveling of
affirmative action.
By Dahlia Lithwick, Posted Thursday, May 16, 2002, at 1:56 PM PT
This week, the 6th Circuit Court of Appeals overturned a district court's finding that the University of
Michigan Law School's affirmative action policy was unconstitutional. In upholding Michigan's affirmative
action program, the Court of Appeals, by a 5-4 vote, took another jog in the twisting national highway of
race and education. Because this new opinion directly conflicts with affirmative action decisions handed
down by other courts of appeals—such that what's unconstitutional in Texas or Georgia is now
permissible in Michigan—it raises questions that can only be answered in the U.S. Supreme Court. But
the Supremes have consistently declined to revisit their own baffling affirmative action jurisprudence. Not
just because the issue is fraught with political and ideological ugliness, of a sort that makes Bush v. Gore
look like a walk in the constitutional park, but because the debate isn't even about "affirmative action"
anymore, as most of us understand that term. Instead, the affirmative action debate has become the
illusory, impossible attempt to define educational "diversity."
We grow so accustomed to constitutional paradigms that we don't always stop to reflect on where they've
come from. That abortion rights are rooted in the right to "privacy" is a mere accident of constitutional
history; this right was conveniently planted in the fertile soil of the 14th Amendment—dug into the dirt of its
"liberty" jurisprudence, as opposed to the sandy ground under the "equal protection" clause or the barren
rocks of the "privileges and immunities" clause. So, too, the constitutional justification for affirmative
action is, as a result of historical accident and some constitutional nose-counting, sown in the dirt of
educational "diversity." It didn't have to be this way. There were other theoretical hooks to peg it on. And
most defenders of affirmative action would prefer that it were otherwise. But as a result of University of
California v. Bakke, the last affirmative action education case decided in 1978 by the high court,
"diversity" is the only game in town.
To understand the gestation and blossoming of the "diversity" rationale requires wading back through the
swamp of the vote in Bakke. Because there was no majority vote for any one position in Bakke, Justice
Lewis Powell, writing only for himself, became the crucial swing vote on a court otherwise split 4-4.
Because he joined one group of four on one issue and the other group of four on the other, his weird solo
opinion became decisive and is now seen as having laid out the "law" of affirmative action in public
education. The effect of Powell's vote: While invalidating the UC Davis med school's quota system for
minority enrollment, the majority of the court nevertheless concluded that taking race into account as a
mere "plus" factor in admissions was constitutionally permissible. Why? Because of the compelling state
interest in fostering diversity on public campuses.
The oddity in Powell's vote is that it was he alone who felt that affirmative action could be justified solely
by a university's compelling interest in a "diverse student body." The other four affirmative action
supporters on the court were willing to promote other "compelling interests" by which affirmative action
programs could be justified. In fact there were three other rationales for minority preferences that Powell
might have chosen from: 1) the need to reduce a historical shortage of minority doctors; 2) the need to
cure past discrimination across society; and 3) the need to increase the numbers of doctors willing to
practice in minority communities.
In rejecting each of these alternative rationales, Powell—and thus the entire Bakke majority—made
student-body diversity the singular goal of affirmative action programs. We don't even get to talk about
correcting for past racial imbalances or promoting minority advancement as reasons to favor affirmative
action. Those ideas are off the table. At least they're off the constitutional table, forever.
It's vital to understand both the vote count and logic of Bakke to understand the crisis facing the courts of
appeals in attempting to rule on the constitutionality of school admissions policies. Judges may not hear
arguments about the importance of a "level playing field," even though these are the arguments you make
at your kitchen table. The only permissible question before them anymore is whether the school in
question is promoting "diversity."
Whatever that means.
Because student diversity means both everything and nothing, the courts following Bakke have either
chosen to bind themselves by the opinion or disregard it whole-hog. The latter is what the 5th Circuit did in
1996, when it invalidated the University of Texas law school's affirmative action program in Hopwood v.
Texas. The 5th Circuit simply found that Bakke was not binding precedent and that diversity was not a
compelling government interest. Easy. The Hopwood court laid out its more "complete" definition of
"diversity": "A university may properly favor one applicant over another because of his ability to play the
cello, make a downfield tackle, or understand chaos theory. An admissions process may also consider an
applicant's home state or relationship to school alumni." Last August, the 11 th Circuit Court of Appeals
weighed in, with Johnson v. Board of Regents of University of Georgia, invalidating the University of
Georgia's admissions policy as impermissible reverse discrimination. The 11 th Circuit simply picked up
where the Hopwood court left off, holding that the admirable goal of student "diversity" can as readily be
achieved by disregarding race and color altogether: "A white applicant to a Georgia public university who
was raised in Athens, Greece may have a much richer background and exposure to a much more
unusual environment than a non-white applicant who has spent all his life in Athens, Georgia." To the
cello-playing-downfield-tackle test of Hopwood, the 11th Circuit thus added the richness brought to
campus by: "individuals who come from economically disadvantaged homes; individuals who have lived
or traveled widely abroad; individuals from remote or rural areas; individuals who speak foreign
languages; individuals with unique communications skills (such as an ability to read Braille or
communicate with the deaf); and individuals who have overcome personal adversity or social hardship."
To be fair, the 5th and 11th circuits are not wrong. If we're really after "diversity" in schools, we should
recruit more Maori warriors. It was probably a historical inevitability that the definition of "diversity"
proffered by Justice Powell, in his concurrence in Bakke, would someday be used as a weapon against
minority students. What Justice Powell was calling race-neutral diversity was always known to be a code
word for racial diversity. Powell wasn't really interested in filling colleges with Alsatian goat herders. He
was looking for some neutral-sounding reason to give minority candidates a small "plus" in the
admissions office. But subsequent courts of appeals have called him on it. Refusing to honor his code,
they take him at his word. If diversity is important, they say, admit more Wiccans.
This was the damaged legal universe inherited by the 6th Circuit when called upon to decide two
University of Michigan cases this year. To highlight the ironies here, one lower-court judge had
invalidated the University of Michigan Law School's admissions policy while another upheld the
undergraduate policy at the same school. (The 6th Circuit will decide this latter case shortly.) A close
reading of the majority opinion in the Michigan decision proves that the affirmative action debate no
longer concerns itself with the blood-and-guts issues of racial disparity and the need for national
remedies. It's about diversity, stupid.
The majority spends its energy getting out from under the quota ban in Bakke by arguing that Michigan's
minority admissions policy does not constitute a mathematical quota. The opinion holds that minority race
and ethnicity, among other factors, count as a "plus" in student applications at Michigan but that being a
minority guarantees no one a slot. The opinion even argues that schools need a "critical mass" of minority
students so that minorities do not feel "isolated." (This goes well beyond diversity and starts to look like
constitutional snuggliness, but whatever.) The opinion devotes some energy to slathering the love all over
Powell's opinion in Bakke, insisting that his is, in fact, the majority holding. But nowhere does the majority
attempt to unpack the core assumption first asserted by Powell and repeated blandly by courts in the 24
years since: that educational diversity is somehow vital for our democracy.
The heavy lifting on why diversity is a compelling state interest is left to Judge Eric Clay, who, in his
concurrence to the majority opinion, offers up empirical evidence proving the "positive impact of diversity
in education." Clay cites studies showing that racially diverse settings allow students to "learn better"; that
they "encourage intellectual experimentation"; that "[c]omplex thinking occurs when people encounter a
novel situation for which, by definition, they have no script, or when the environment demands more than
their current scripts provide"; and that diversity in education thus fosters positive "democracy outcomes."
In conclusion, Judge Clay can justify refusing some qualified white applicants positions in the law school
because the wonderfulness of diversity "provides significant benefits to all students—minorities and nonminorities alike." In other words, some white students are refused so that other white (and nonwhite)
students may be enriched. This is the core of the "diversity" defense.
Needless to say, the dissenters go to town on both the inherent benefits of "diversity" and on the notion
that racial diversity is of greater value than diversity of the cellist-Greek-Wiccan variety. Stating from the
outset that "it's not clear what [diversity] means," Judge Danny Boggs' dissent charges that the "Law
School grants preference to race, not as a proxy for a unique set of experiences, but as a proxy for race
itself." In other words, the dissenters want "diversity" to mean "diversity" and not "racial preferences for
historically disadvantaged minorities."
Ultimately, it's almost impossible to read the dissents in this case, or the majority opinions from the 5th
and 11th circuits, without finding them to be on the right side of the argument. Not because affirmative
action is wrong. I, for one, continue to be all for it. The problem is that Justice Powell's legal fiction of
"diversity" is crumbling fast; the legal frame he crafted for Bakke does not support the work that needs to
be done. The issue of affirmative action could never properly be contained within the rationale that
generalized campus "diversity" was compelled by the Constitution. It could only be justified based on the
historical reality of race discrimination in this country.
Still, Justice Powell made his constitutional bed, and now the current Supreme Court has to lie in it. They
have dodged the affirmative action bullet three times in the past. It's not at all clear that with the Michigan
decision being appealed, they'll be able to do it again.
George W.'s Racial Covenant, Eve Gerber, Posted Tuesday, July 13, 1999, at 6:11 PM PT
George W. Bush bought a house in 1988 that came with a deed restricting its use to “white persons only,
excluding bona fide servants of any race.” Matt Drudge reported this yesterday and the Texas governor's
office confirmed it today. Bush sold the house in 1995. Is this a scandal?
So-called “restrictive covenants” are common in property deeds. They are a way of enforcing some
requirement in perpetuity, no matter how often the property changes hands. Typical covenants forbid the
onsite consumption of alcohol, the raising of sheep, or even the display of colored Christmas lights.
Racial covenants limit the use of the property to members of a specified race or forbid the sale of the
property to minorities. Covenants “run with the land,” meaning that future buyers must abide by their
Racial covenants became common after the Civil War. Early this century, after the Supreme Court
overturned laws that forbade blacks to live in particular neighborhoods, covenants in deeds became the
only way to maintain legally enforceable racial segregation. The Federal Housing Administration,
established in 1934 to spur home-ownership by providing mortgage-loan guarantees, actually required
real estate developers to include racial covenants in their deeds as a condition of FHA financing.
Levittown, the model for postwar suburbia, excluded blacks through racial covenanting. All the houses in
the Bushes' Dallas neighborhood have racial covenants. The covenant on the Bush property dates back
to 1939.
A racial covenant is, in theory, a voluntary agreement between two private citizens, the buyer and seller.
As such, it was argued, a covenant was not affected by the Constitution, which places limits only on
government action. But in 1948, the Supreme Court held that it would be unconstitutional for any court, as
a government institution, to enforce a racial covenant. The holding was 6-0; three judges opted out of the
case because they lived in restricted neighborhoods. Then in 1968, the Fair Housing Act outlawed racial
discrimination in housing even by private individuals. It became illegal to refuse to sell your home on the
basis of a prospective buyer's race. The act specifically forbade any new racial covenants in deeds.
Today racial covenants are unenforceable and irrelevant in the eyes of the law. Prospective purchasers
usually don't even learn of a racial covenant until after they have contracted to buy a home. That's when
they pay for a “title search,” which consists of tracing ownership back as far as possible from the seller to
the person who sold the property to the seller, to that person's seller, and so on. The purpose is to make
sure the seller actually has “good title” to the property and there are no unexpected restrictions or
burdens on it (such as an earlier mortgage). To help this process, the law requires that deeds and claims
must be “registered,” with a copy on file with the local government. Typically a racial covenant is on file
with a deed of many years ago. Subsequent deeds just say that the buyer takes on any restriction that the
seller took on. A title search attorney might not even mention a racial covenant to the buyer, since it has
no legal effect. But CNN reports that the Bushes' title company did include the racial covenant in their
Should Bush have insisted on expunging the racial covenant from his house's title records, even though it
was meaningless? It's possible to do this. Generally, it requires that all parties with an interest in a
property must agree to invalidate the covenant. That is why a Bush spokesperson claimed that Bush
alone could not remove the racial restriction. Some covenants require the approval of two-thirds of
neighbors or the permission of a sub-division developer to amend their terms. A deed may also be
amended by filing suit for a declaratory judgment that racial covenants are null and void. That judgment
would become part of the title, recorded at the registry of land records. Filing a notarized declaration with
a property's deed is another means of disavowing a racial covenant.
But most people decide, not unreasonably, that expunging a meaningless provision in a legal document
isn't worth the trouble and expense. Other public figures embarrassed by revelations that their property
was once encumbered by racial restrictions include: John F. Kennedy, Richard Nixon, Ronald Reagan,
and even the senior George Bush.
Miguel, Ma Belle, The racial ugliness under the Miguel Estrada
By Dahlia Lithwick, Posted Thursday, Feb. 27, 2003, at 4:16 PM PT
Of all the ugliness churned up by the battle over whether Miguel Estrada deserves a spot on the D.C.
Circuit Court of Appeals, the fact that it strips us down to our barest racial selves is the ugliest. If the crash
of Trent Lott proved that the Old South still lives in the Senate, the battle over Estrada confirms that the
race virus plaguing this country isn't fading with dying senators; it's just morphing into more and more
lethal strains. And it's not just Congress. You expect them to behave like petulant babies, strutting and
fretting their racial outrage before the cameras. But even more depressing than the unfolding filibuster
has been watching Hispanic advocacy groups eat each other alive over the nomination, running
commercials attempting to influence congressional votes and accusing one another of being "anti-Latino"
for disagreeing over the fitness of the nominee. This confirmation has become the affirmative action
debate in different packaging: Can we ever get far enough past racism to figure out how to get past race?
There are so many different strands of affirmative action and racial misunderstanding bound up in the
Estrada nomination that it's virtually impossible to untangle. First, there is the Bush administration's effort
to court Hispanic voters by positioning a Hispanic-American for a Supreme Court slot. This is pandering—
no different from George Bush Sr.'s determination to replace Thurgood Marshall with an AfricanAmerican—and it might be permissible pandering if Bush would just cop to it and admit that he wants to
put a Hispanic judge on the high court because race matters in America. Instead, it mirrors his profoundly
illogical claim that he supports racial diversity in education but opposes affirmative action. Thus, the
cynical Bush take on affirmative action: Race matters enough to count when it comes to re-election but
not enough to deal with it honestly or systemically.
Then there's the new Republican racial awareness, featuring the grotesque claim that Estrada is being
blocked because he is Hispanic. Sen. Orrin Hatch recently whined that Estrada's Democratic opponents
were "anti-Latino," the implication being that the real racists in Washington are the Democrats standing
between Estrada and his opportunity to break down a significant racial barrier on the bench.
But as depressing as all the name-calling among white lawmakers is, the worst feature of this
confirmation is the backbiting among Hispanic-Americans, who can't make up their minds whether it's
more important to get a certified Hispanic judge onto the bench—regardless of his views or ideology—or
to make sure that their Hispanic judge meets some idealized standard of authentic Hispanicness
(preferably demonstrated by mentoring Hispanic children and rising up out of squalor). As the debate
grows uglier, it's now becoming a contest among Mexicans, Cubans, and Hondurans about who—to
paraphrase Snow White—is the most Hispanic of them all. Robert de Posada, the president of the Latino
Coalition, a Washington policy group that supports Estrada, told reporters last week that the MexicanAmerican Legal Defense and Education Fund only opposes Estrada because he is not from Mexico,
which is where they believe the first Hispanic Supreme Court justice ought to come from. De Posada also
had some choice words for Robert Menendez, one of the congressional Democrats who opposes
Estrada. "Menendez" he said, is "a Cuban-American who looks completely white. I wonder: Has he faced
the racism and isolation that other Hispanics have faced?" This, then, is what the discussion has come to:
a battle about who is Hispanic enough to warrant the racial preferences that most Americans oppose in
the first place.
What the Hispanic groups on both sides don't seem to understand is that, with all this infighting, they are
managing to dismantle every single argument for affirmative action and making the case that race should
play no role at all in public life.
On the one side, we have the Estrada supporters—including one of the country's largest Hispanic lobbies,
the Texas-based League of United Latin American Citizens (LULAC), as well as the Hispanic National
Bar Association, the U.S. Hispanic Chamber of Commerce, and the Hispanic Business Roundtable. Their
spokesmen seem to muster little beyond the tired argument that it's always better to have someone with
brown skin in positions of power than to have someone white. This was the philosophy of Brent Wilkes,
director of LULAC who told NPR last fall, "If we vote him down just because he's Latino and we're holding
him to a higher standard, then how will that get the community anywhere when we'll probably end up with
another white conservative rather than, in this case, I guess Latino conservative?" And in an interview
with Hispanic last week, Hector Flores, president of LULAC, said, "The battle isn't whether
he's conservative; it's that he represents Latinos, whether we like him or not."
This attitude reflects several justifications for affirmative action: Break down racial barriers, remedy past
discrimination, and create minority role models. All these arguments decline to look past skin color in the
interest of getting the bodies onto the bench. But this argument has boomeranged badly in the past, not
only because the Clarence Thomases have simply not been better for blacks than the David Souters, but
because this kind of single-minded race-consciousness can only denigrate the minority in question. By
ending the discussion at skin color, it sets up the implication that minorities succeed only because of
preferences, that they couldn't have achieved such successes on their own merits. Could Miguel Estrada
or any other minority candidate really sleep at night knowing that half his supporters would support a
Honduran Hannibal Lecter as readily as they support him?
What about Estrada's opponents in the Hispanic community? Are they being any less simplistic for their
insistence that the nominee match up to some preconceived template for Hispanicness? Groups that
oppose the Estrada nomination include the Mexican-American Legal Defense and Education Fund, the
Puerto Rican Legal Defense and Education Fund, and the Southwest Voter Registration Project. In the
past weeks, the California state delegation of LULAC has broken away from the national group to oppose
Estrada as well. But the most vocal objections come from the Congressional Hispanic Caucus, a group of
20 House Democrats who, unable to evaluate Estrada based on his judicial experience (he has none) or
legal writings (which are not being produced) met with him for an hour last June, in the basement of the
Capitol. Their conclusion? According to Rep. Robert Menendez of New Jersey, Estrada "shares a
surname" with Latinos but has done little to help them. Menendez complains that Estrada had not set up
internships or mentorship programs specifically aimed at helping young Latino lawyers, and he told
Democrats that his ethnicity would be irrelevant to his day-to-day work as a judge.
But Menendez's sort of thinking decimates the only other justification for affirmative action (and the only
one that now counts as a matter of law)—the argument that racial preferences automatically generate
"diversity" of experience. To his detractors, Estrada's principal failing is that his privileged upbringing in
Honduras and beyond were too "white" somehow—too Columbia and Harvard Law and Gibson, Dunn,
and Crutcher. He was not born in squalor, nor did he rise from the barrio. As a result, he does not
represent the "Latino experience." By making this argument, Estrada's detractors are merely proving that
race is indeed not a proxy for diversity—and that if you really want to guarantee diversity of experience,
favoring minority candidates over poor or rural ones is the absolute wrong way to go.
In the end, Miguel Estrada's supporters cannot see past his skin color, and his detractors cannot see past
his ideology. As a result, the "debate" over his qualification is happening, yet again, in the weary key of
black-and-white. There are good arguments for affirmative action, but the Estrada fight is not the place to
find them. We can only hope that the Supreme Court can bring more nuance and sophistication to their
consideration of affirmative action next month than we have brought to the debate over Miguel Estrada.
Supreme Court Fudge, By Michael Kinsley, Posted Tuesday, June 24, 2003, at 12:30 PM PT
Admission to a prestige institution like the University of Michigan or its
law school is what computer types call a "binary" decision. It's yes or
no. You're in, or you're out. There is no partial or halfway admission.
The effect of any factor in that decision is also binary. It either changes
the result or it doesn't. It makes all the difference, or it makes none at
all. Those are the only possibilities.
For any individual, the process of turning factors into that yes-or-no
decision doesn't matter. Any factor that changes the result has the
same impact as if it were an absolute quota of one. It gets you in, or it
keeps you out. And this is either right or it is wrong. The process of
turning factors into a result doesn't matter here, either. In this sense,
the moral question is binary, too.
For 25 years, since Justice Powell's opinion in the Bakke case, moderates on the Supreme Court and
well-meaning people throughout the land have been pretending that it is possible to split a difference that
cannot be split. This week's court ruling, in which Justice O'Connor contrasts the college and law-school
admissions systems at Michigan and essentially reaffirms Bakke, shows how laughable that pretense has
Michigan's college admissions policy at the time this suit began was strictly numerical: You needed 100
points to get in, and you got 20 points for being an officially recognized minority. Flatly unconstitutional,
the court declared. Michigan's law school, by contrast, "engages in a highly individualized, holistic review
of each applicant's file." It "awards no mechanical, predetermined diversity 'bonuses' based on race or
ethnicity." Instead, it makes "a flexible assessment of applicants' talents, experiences, and potential …"
blah blah blah. This is how it should be done, the court said.
Yes, but does the law school give an advantage in admissions to blacks and other minorities? Well, says
the court, quoting the law school's brief, it "aspires to 'achieve that diversity which has the potential to
enrich everyone's education.' " The law school "does not restrict the types of diverse contributions
eligible" for special treatment. In fact, it "recognizes 'many possible bases for diversity admissions.' "
Yes, yes, yes, but does the law-school admissions policy favor minorities? Well, since you insist, yes:
"The policy does … reaffirm the Law School's longstanding commitment to 'one particular type of
diversity,' " i.e., "racial and ethnic diversity." But O'Connor's opinion immediately sinks back into a vat of
fudge, trying not to acknowledge that "racial and ethnic diversity" means that some people will be
admitted because of their race and others will be rejected for the same reason—exactly as in the
undergraduate admissions system the court finds unconstitutional. By ignoring the similarities, the court
avoids having to explain coherently why it sees such profound differences.
The court actually seems to be in denial on this point. Although it forbids explicit racial quotas or
mathematical formulas to achieve racial balance, it is happy enough to measure the success of its
preferred fuzzier approaches in statistical terms. If a selection system is going to be judged by its success
in approximating the results of a mathematical formula, how is it any different from using that formula
explicitly? Elsewhere, arguing for the social value of affirmative action, O'Connor's opinion cites dramatic
statistics about how few minority students there would be if it were ended. But don't those statistics imply
that affirmative action is having an equal-and-opposite effect now? And isn't that good to exactly the
extent that ending affirmative action would be bad? And if that extent can be measured and judged using
statistics, why is it wrong to achieve the statistical goal through statistical means?
The majority opinion says that its preferred flexible-flier style of affirmative action does "not unduly harm
members of any racial group." Well, this depends on what you mean by "unduly," doesn't it? As noted,
we're dealing with an all-or-nothing-at-all decision here. Every time affirmative action changes the result,
a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only
currency on issue, which is admission to the University of Michigan. This burden may be reasonable or
unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style
affirmative action that the court finds objectionable.
The Supreme Court took these Michigan cases to end a quarter century of uncertainty about affirmative
action. What it has produced is utter logical confusion. The law-school dean testified that "the extent to
which race is considered in admissions … varies from one applicant to another." It "may play no role" or it
"may be a determinative factor." O'Connor cites this approvingly, but it is nonsense on several levels.
First, "no role" and "determinative factor" are in fact the only possible options: There cannot be an infinite
variety of effects on a yes-or-no question. Second, when race is determinative for one applicant, it is
determinative for one other applicant, who may or may not be identifiable. Third, the same two
possibilities—no factor and determinative factor—apply to any admissions system that takes race into
account in any way, including by mathematical formula and even including an outright quota system. So,
it says nothing special about the law school's admissions policy compared with any other.
Finally, the court is confused if it thinks that a subjective judgment full of unquantifiable factors is
obviously fairer than a straightforward formula. But confusion seems to be a purposeful strategy. The
court's message to universities and other selective, government-financed institutions is: We have fudged
this dangerous issue. You should do the same.
Gorilla Warfare, Does a sexually integrated military make sense for a
primate species?
By Robert Wright, Posted Friday, June 20, 1997, at 12:30 AM PT
The current effort to sexually integrate the U.S. military is not without precedent. Consider the natives of
New Caledonia in the South Pacific, who earned their place in military annals by subduing and then
eating the crew of a French survey ship in 1850. The men and women typically headed off for war in
unison, although their roles did differ once the fighting began. The women would fall back to the rear;
then, as one 19th-century observer put it, "whenever they see one of the enemy fall, it is their business to
rush forward, pull the body behind, and dress it for the oven."
OK, so these women aren't quite the role models that proponents of sexual integration would order up
from central casting. But history has provided few candidates for that job. As Maurice Davie noted in 1929
in his cross-cultural survey, The Evolution of War, "war is the business of half the human race."
As a rule, the fact that women have not traditionally performed a given role has no bearing on their
competence to perform it now. Centuries of female exclusion from academia or civil engineering haven't
rendered modern women unfit for those professions. However, male dominance of the killing business
seems to have been going on for a lot longer than a few centuries--maybe long enough to have
influenced human evolution, shaping the biological foundation of human psychology. If so, does that
mean male and female psychology are so different that the sexual integration of the military is misguided?
The question breaks down into three subquestions.
1 Are men designed by natural selection for warfare? As regular "Earthling" readers may recall, the
premise of evolutionary psychology is simple: Those genetically based mental traits that, during evolution,
consistently helped their possessors get genes into the next generation became part of human nature.
Careful thought experiments have shown that, in a context of regular violence, mental traits conducive to
killing would do more for your genes than mental traits conducive to getting killed would. So if during
human evolution men often fought in wars and women didn't, then indeed men might be naturally better
warriors than women.
Of course, the frequency of war in prehistory is not well recorded. (Hence the term "prehistory.") But
various hunter-gatherer societies--the nearest real-life models of the social environment of human
evolution, and thus the purest observable expression of human nature--have been known to engage in
intervillage raids. Australian Aborigines of the 19 th century, according to one chronicler, made it a point "to
massacre all strangers who fall into their power." In some of these societies, more than a fourth of the
males die violently.
And whether or not our distant male ancestors often participated in actual "war," they probably fought
other males and sometimes killed them. The warless !Kung San hunter-gatherers of the Kalahari Desert,
once romanticized as The Harmless People, were found a few decades ago to have homicide rates
between 20 and 80 times as high as industrialized nations. (And some of this killing is coalitional--two
brothers and a friend gang up on an enemy, etc.) So, ethnographic evidence alone suggests that men
could well be designed by natural selection to fight, and perhaps to do so in groups.
There is more evidence, which we'll get to shortly. However, the policy implications of any male
propensity to fight would depend on other questions. For example:
2 Are women by nature shrinking violets, innately repulsed by war, incapable of violence? Hardly.
Feuding Australian Aborigine women would sometimes square off and whack each other with yam sticks
until somebody intervened. Among the Ainu, the indigenous hunter-gatherer people of Japan, women
would go to war and actually fight, though only against other women.
Even when women aren't combatants, they hardly shy away from the thought of war, or from its gore.
Among the Dayak of 19th-century Borneo, women would surround a returning warrior, singing songs of
praise, while the head of one of his victims sat nearby on a decorative brass tray. Among the Yanomamo
of South America, women watch the one-on-one "club fights" that sometimes escalate into intervillage
conflicts, screaming insults and egging their men on. Among the Ba-Huana of the Congo, one 19thcentury ethnographer reported, "the chief instigators of war are the women." If their men are insulted by
other men and don't retaliate, "the women make fun of them: 'You are afraid, you are not men, we will
have no more intercourse with you! Woma, woma [afraid]! Hu! Hu! Hu!' Then out go the men and fight."
All told, though women as a group are less combative than men, they are not wholly averse to combat.
And plainly, some women are more eager and capable fighters than some men. (I'm male, but no one has
ever confused me with Charles Bronson.) So why deny high-testosterone women an opportunity to join in
the fun? If there is a good reason, it has to do with our final question.
3 Why
do men fight so much? Here we come to a problem that will prove stubborn if
the military tries to sexually integrate ground combat forces such as the infantry.
The problem isn't so much that men are designed by natural selection to fight
as what they're designed to fight over: women.
Even today, Yanomamo men raid villages, kill men, and abduct women for
procreative purposes. Moreover, tough, mean men enjoy high social status,
which attracts women and helps the men get genes into the next generation.
The anthropologist Napoleon Chagnon has shown that Yanomamo men who
have killed other men have more wives and more offspring than average guys.
It's not just a question of men disinclined to violence getting killed off. Two men
might fight over a woman until one man submits and the winner gets the
woman. Or, men might fight for seemingly nonsexual reasons, but the winner
still enjoys the high social status that wows the ladies. Indeed, it's possible that
non-lethal violence has done more to shape the male propensity for violence
than simple killing has.
Male combat is common among primates. It is the reason that, in many primate
species, males are so much bigger and stronger than females. Indeed, the
more polygynous the species--that is, the more females a dominant male can
sexually monopolize--the larger the size difference between the sexes. The
toughest male gorillas get a whole harem of females to themselves, and the
wimpiest get zilch. Eons of combat over such high genetic stakes have led to males that are about twice
the size of females. In our species, the more modest but still marked difference in size and strength
between men and women is hard evidence that violence, whether lethal or non-lethal, has paid off for
men in Darwinian terms. Among the other evidence is the fact that testosterone makes people
The problem with fielding a sexually integrated army of gorillas wouldn't be that the females can't fight.
Try stealing a female gorilla's baby and see how you fare. The biggest problem is that if you put three
male gorillas together with one unattached female, esprit de corps will not ensue.
Yes, of course human males are better at controlling their hatreds and rivalries than gorilla males are. But
are humans so good that it makes sense to sprinkle a few women into a group of infantrymen and send
them all off to war, where everyone's prospects for survival will depend on their solidarity? Hoping (even
subconsciously) that one of your comrades will die seems a poor frame of mind to carry into battle.
Does the same argument apply to nonmilitary workplaces? Doesn't sexual integration sow dissension
there as well? I'd say that any downside to sexually integrating nonmilitary workplaces is not severe
enough to restrict the rights of women (or men). And--in many workplaces--there may be a big upside to
sexual integration. But the military is special. The cost of dissension is death, not lower earnings. (And
during big wars, when the draft is on, many of the victims are people who didn't volunteer for the job.
That's one big difference between this issue and the issue of sexually integrating police forces.)
This logic has no direct bearing on the currently topical issue of sexually integrated basic training. The
troops that take basic together don't go off to war together, so their bonding isn't a matter of life and
death. Still, basic training is meant to model some of the rigors of war, and it turns out to be a useful
model indeed: The complaints of sexual harassment that deluged the Army after the Aberdeen scandal
(which itself didn't involve basic training) show how male and female psychology can complicate life for a
sexually integrated army. Obviously, the more conspicuous problems--men propositioning women, for
example--can be minimized with sufficiently harsh punishment. But the underlying psychological forces
will still be there, taking their toll. And remember: When soldiers go from training camps to actual war,
things get more primitive, not less.
One can imagine combat roles for women that wouldn't fly in the face of human nature. (Why not try allfemale infantry battalions?) But reflecting on human nature doesn't seem to be a common pastime at the
Pentagon. Sexually integrating ground combat forces is now favored by one assistant secretary of the
Army. The secretary himself, Togo West, has said he is open to the idea. And already combat forces are
somewhat integrated in the Air Force (squadrons of pilots) and Navy (ship crews). (These things, though,
aren't as dubious as integrating the infantry would be.) Given the stakes, shouldn't such decisions be
informed by some knowledge of sexual psychology? Or, instead, we could just wait for a war and use 20year-olds as guinea pigs in a poorly researched social experiment.
Why Can't a Woman Be More Like a Man? Deborah Blum's Sex on
the Brain.
By Steven Pinker, Posted Wednesday, Aug. 27, 1997, at 12:30 AM PT
Sex on the Brain: The Biological Differences Between Men and Women
By Deborah Blum, Viking Press; 352 pages; $24.95
Imagine a tropical island on which some of the girls, at
adolescence, magically turn into men. Think of the scientific
possibilities! Finally, we could tease apart nature and nurture and
see whether men and women differed because of how they were
brought up as children. As the twig is bent, we say, so grows the
branch; we expect these teens to have girls' minds in boys' bodies
and to suffer from a painful confusion of gender roles.
As it happens, this is not a thought experiment. In a few
Dominican villages, some families carry a gene that leaves
newborn boys with undescended testicles and a stunted penis
resembling a clitoris. They are raised as girls until puberty, when
the new rush of androgens gives them normal male genitals and a
masculine body, complete with facial hair. The villagers call them
guevedoces: "eggs [or balls]-at-12." The child switches genders,
wears male clothing, begins to date, and turns into a normal man,
without fuss or trauma. So much for bending the twig. Gender
identity comes either from the effects of hormones on the brain or
from the way people are treated as adults, or both; childhood
nurture makes little difference.
Balls-at-12 is just one of the fascinating discoveries brought to light in Deborah Blum's excellent book Sex
on the Brain: The Biological Differences Between Men and Women. This is the real Everything You
Always Wanted to Know About Sex (or The Sexes). Why are there sexes? To change our biochemical
locks every generation and keep a step ahead of the rapidly evolving pathogens that try to pick them.
How different are men's and women's brain structures? Not very. Do raging hormones turn men into
testosterone-poisoned rapists and women into weepy premenstrual husband-stabbers? No both times.
Are men and women biologically different in ways other than the obvious anatomical ones? Yes--men are
shorter-lived, more cerebrally lopsided, more violent, better at some spatial abilities, worse at verbal
abilities, more competitive but more forgiving of their competitors, more sexually jealous, more socially
obtuse, and more promiscuous (at least, they'd like to be).
Not only are we learning more about sex differences, but we also have an elegant theory to explain them.
In the 1970s the biologist Robert Trivers showed how all the major differences between the sexes in the
animal kingdom flow from a difference in the size of their investment in offspring. The female begins with
the bigger ante--an egg that is far bigger than a sperm--and usually commits herself to even more, such
as yolk; or, in mammals, blood and milk. The male contributes a few seconds of copulation and a
teaspoon of semen. The number of offspring in each generation is limited by the female's contribution:
one for each egg she produces and nurtures.
That has two momentous consequences. First, a single male can fertilize several females, forcing other
males to go mateless. Males must compete for access to females by beating each other up, cornering the
resources necessary to mate, or persuading a female to choose them. Second, a male's reproductive
success depends on how many females he mates with, but not vice versa; for a female, one mating per
pregnancy is enough. That makes females more discriminating in their choice of sexual partners.
Humans have added some twists to the mammalian pattern. Men generally invest in their children by
providing food, protection, and care. So females also compete for mates, though they look for the ones
most willing and able to invest, not the ones most willing to copulate (those are never in short supply).
Females, like males, may be tempted by infidelity, though their genetic motive is quality rather than
quantity. A discreet adulteress can get the genes of the fittest male and the investment of the most
generous male. An easily cuckolded male would devote his efforts to the genes of a competitor, which is
Darwinian suicide; hence men's intense sexual jealousy.
Blum is a superb science reporter who presents just the right amount of complexity, tries to explain
findings rather than just report them, and writes in a consistently clear and pleasant style. Sex on the
Brain is such a good window on the state of the art that its only flaws are the flaws of the researchers
Unlike Robert Wright and Matt Ridley, who have also written excellent recent books on the biology of sex,
Blum does not ground her own story in rigorous evolutionary biology, but rather lets the laboratory
scientists speak for themselves. Unfortunately, many good bench scientists are mediocre theorists, often
by choice. "Why" questions are thought to be an indulgence, appropriate only for musings over beer at
the end of the day. Blum reports (and occasionally echoes) some sloppy evolutionary "explanations,"
including casual analogies between arbitrary species and Homo sapiens, the equation of evolution with
progress, the idea that contemporary changes in Western society are the vanguard of future evolution,
and repeatedly, the error that our adaptations are for the good of the species.
are for the good of the genes that implement them, and one of the best
demonstrations is right in Blum's territory: the 50-50 ratio of males to females.
If organisms were designed to benefit the species, they would not waste half
the available food on sons, who can't directly replenish the species with
babies. Any necessary genetic variation could easily be supplied by a few
studs. Organisms pump out sons because whenever females are more
plentiful, the genes of mothers and fathers who bear sons have a reproductive
field day, and the mixture settles at 50-50. If the species suffers, that's just too
Blum not only fails to share these explanations, but also sometimes repeats
ones that are downright wrong--such as that men die young because the species needs them less. A
better explanation is that males' reproductive fate depends more strongly than females' on competing
when they are young. So any gene that builds a man with a strong young body at the cost of a weak old
body will prosper.
Blum's informants also mislead her in their appeal to chemistry as an ultimate explanation of sex
differences. Blum masterfully explains why the effects of hormones are more complicated than pop
science would have us think. They are produced by several organs in both sexes, may be converted into
one another, and can have varying effects in different species, sexes, and individuals. The moral is that it
is not hormones themselves but the neural circuitry, shaped by natural selection and modulated by the
hormones, that explains our thoughts and feelings. The role of particular hormones may be like the role of
green wires in an electronic device. The answer to the question "How does the device work?" depends on
which wires connect which chips, not on the fact that a given wire is green.
This undermines explanations that assume ironclad effects of hormones. Take the idea that men became
less competitive because women insisted on monogamy, which lowers testosterone. Natural selection is
a resourceful tinkerer and could have rewired men's brains to respond to lowered testosterone in any
number of ways, not necessarily by becoming less competitive. A better answer would appeal to the
tradeoffs males face between investing in their current offspring vs. competing with other males to sire
new offspring with other females.
In many circles, "The Biological Differences Between Men and Women" are fighting words. It seems a
short step from saying that men and women are biologically different to saying that women are inferior.
Moreover, if obnoxious behavior like aggression, rape, and philandering are biological, that would make
them "natural" and hence good--or at least in the genes, where they cannot be changed by social reform.
The result has been an angry rejection of the research Blum reports and an attempt to disseminate a feelgood alternative in which boys and girls are identical and infinitely malleable.
Blum rejects these non sequiturs. She does recount the sexist pre-1950s research, which is occasionally
hilarious (as when scientists were obsessed with testosterone, which they treated as the essence of
masculinity) and sometimes tragic (as when hare-brained theories led to horrifying surgical procedures on
women). Blum dismisses bad research with the right touch of scorn, but does not feel a need to neutralize
it with politically palatable agitprop. She believes that science can approach the truth, and that we are
best off if we know it and deal with it thoughtfully--which she does. Sex differences, she points out, offer
no support to invidious stereotypes, are not a guideline for what is right, do not apply to every individual,
and never justify the restriction of opportunity. The ignoble impulses of both sexes are part of a complex
mind that can often override them; and social arrangements, from individual marriages to entire legal
systems, can change for the better.
Don't Take It So Personally, Feminism's boundary problem.
By Judith
Shulevitz Posted Saturday, Oct. 3, 1998, at 12:30 AM PT
About 130 years ago in England, an unlikely coalition of feminists, trade unionists, and clergymen
transformed the sexual mores of the day. The alliance began progressively enough, as a campaign
against a law authorizing the police to round up prostitutes--and other women suspected of loose morals-and force them to submit to pelvic exams. The law was repealed. Thrilled at their newfound clout,
feminists looked around for another issue.
They found it in white slavery, or "traffic in women." The cry went out. Newspapers took it up, running
story after story about virgins sold to drooling aristocrats. New laws were passed. The "social-purity"
movement was born.
Things spun quickly out of the feminists' control. Whipped into a frenzy, citizens formed the National
Vigilance Association, but rather than protecting impoverished virgins the vigilantes conducted a crusade
against prostitutes, homosexuals, music halls, theaters, paintings of nudes, and French novels (which
they burned). At first, feminists joined in the fun. But when the misogyny and terror of the social-purity
movement became impossible to ignore, they withdrew into the background. Which is where they
remained for the next 20 years, discredited and humiliated, until the next wave of feminist activism came
Feminist historian Judith Walkowitz published an essay about this incident back in 1983, during the height
of feminist anti-pornography fervor. She wanted to show what can happen when feminism joins forces
with the public-decency crowd. Now what can happen has happened. The social-purity movement that is
the Clinton sex scandal has at least some of its roots in feminist thought, and the embarrassed mumbles
of Gloria Steinem, et al., on the Lewinsky question show that feminists know it. For instance: Why were
Paula Jones' lawyers able to depose Clinton on every sordid detail of his sex life? Because of sexual
harassment laws that say a man's entire sexual past may be considered relevant in a lawsuit, even
though a woman's may not. This arrangement was one of the triumphs of feminism over the past two
Like its 19th century counterpart, the women's movement will be forced to retreat from the field, confused
and in disarray, if it doesn't come to terms with its mistakes. The biggest one (as many have pointed out)
was blindly following the lead of that most illiberal of thinkers, Catherine MacKinnon. With her belief that
unwanted sexual advances and utterances (and even, in some cases, wanted ones) degrade women so
profoundly that it's worth limiting free speech to prevent them, MacKinnon laid the intellectual groundwork
for today's sexual harassment laws. Before today, the most egregious outcome of MacKinnonism was the
Clarence Thomas hearings. Liberal feminists (myself included, I'm sorry to say) were so eager to
"educate the public" about sexual harassment, to say nothing of wanting to get rid of an anti-abortion
Supreme Court candidate, that they were willing to overlook the frightening precedent being set. A man's
political career was nearly ended and his private life pawed through while an entire nation watched, even
though the charges against him were never subjected to the rigorous standards of evidence that would
have prevailed in a court of law.
Back in the 1960s and 1970s, before feminism came to mean anti-pornography statutes and laws against
"hostile work environments" and other forms of censoriousness, there were all kinds of feminists. There
were the liberal kind, such as Betty Friedan, who believed in the Equal Rights Amendment, day care, birth
control, and abortion. There were the libertarian kind, such as Walkowitz, who argued for sexual freedom,
no matter how troublesome the consequences. (There were also feminists who just seem goofy in
retrospect, such as women's-music types and flannel-wearing lesbian separatists.)
The healthy diversity of feminist life was killed off by two things: 1) In the late 1970s, after the Equal
Rights Amendment failed to pass, the women's movement deliberately switched from the political arena
to the courts. A legal strategy for change had worked for Thurgood Marshall of the NAACP Legal Defense
Fund, so why not? The answer is as true for women's rights as it has been for civil rights: A movement
always suffers when it fails to subject its ideas to wide public debate. 2) Influenced by MacKinnon and
others, what the women's movement decided to seek in the courts was equal protection plus: the right to
work plus special protection against nasty people in the workplace; the right to make their own sexual
decisions plus special protection against older, savvier guys who take advantage. But rights are not
necessarily cost-free. A relentless expansion of my rights usually ends up imposing burdens on your
rights, or even on other rights of my own. The fury that followed some of the more questionable
expansions of women's rights has made it difficult to talk about anything else.
During a debate on feminism, the philosopher Hannah Arendt once passed a note to a colleague that
said, "What do we lose when we win?" It was the sort of dour remark that made Arendt unpopular among
her female peers. That's a shame, because Arendt's thought offers a way out of feminism's current jam.
She stood for the clear separation of the public from the private sphere, a distinction dismissed as
patriarchal a long time ago by feminists who thought it denigrated domestic life. But failing to see the
importance of this distinction has got feminism into the trouble it's in today.
To Arendt, the elimination of the public-private distinction is what distinguishes 20th century totalitarianism
from earlier and lesser forms of oppression. Even in the days of absolute monarchs, a person's home was
his (or, to a lesser degree, her) castle. But totalitarian governments want to control your private life down
to your psyche and to mold you into a New Man or New Woman on whatever model they're peddling.
Conversely, Arendt's public realm is the exact opposite of the private realm: It's where you're not
protected and shouldn't be. A classicist, Arendt saw the public arena as a version of the Athenian agora-a world of political theater, where the harsh light of publicity shines upon fierce debate. Arendt's
conception of the public was phrased in quasimilitaristic language almost expressly designed to irritate
feminists (it didn't, but only because they had stopped listening). She declared that, for the public realm to
function effectively, participants must display a love of glory. It is a hunger for glory and all that comes
with it--a willingness to sacrifice one's personal desires to the common good; a sense of honor, dignity,
and fair play--that allows politics to rise above a mere squabbling among interests. This is a spirit
feminism lacks, which is why it has allowed women's interests as a class to trump the common interest in
Rediscovering Arendt's public-private split wouldn't necessarily entail abandoning the feminist notion that
the personal is political. We're all better off because feminists turned hitherto private topics into subjects
of public debate. Who'd want to go back to the days when you couldn't even talk about condoms? The
problem is that we've reversed the phrase: We've made the political personal. It's one thing to put
sensitive subjects out there for discussion. It's another thing to welcome jurists, reporters, and the rest of
the American public into our bedrooms. As it turns out, it may not be such a good idea to welcome them
into our workplaces and schools either, at least not as warmly as we have. So should we do away with all
forms of sexual harassment law? Or just parts of it--the hostile work environment clause, say, or the
gender-biased evidentiary rules? It will take years to find the best place to draw the line, and we'll never
get it perfectly right. The important thing is to realize that it's way past time to move it.
Junkie Justice, Are drug addicts covered under the ADA?
By Dahlia Lithwick, Updated Friday, Oct. 10, 2003, at 8:50 AM PT
Raytheon v. Hernandez has, on one side, Joel Hernandez, recovering addict fighting for his old job after
he finds God and gets sober. On the other, Raytheon, huge defense contractor, which—along with the
federal government—is defending its no-second-chances-for-cokeheads policy. Hernandez is, not to put
too fine a point on it, screwed from the word go. …Raytheon is represented by D.C.'s Carter Phillips.
The facts: Hernandez worked for Hughes Missile Systems (later acquired by Raytheon) for 25 years. He
got in trouble in 1986 for absenteeism and admitted to being an alcoholic. He underwent treatment, then
tested positive for cocaine. He resigned in lieu of termination, and a note to that effect went on his file. It
did not specify that he was an addict. Hernandez bottomed out, gave up drugs, and joined AA. In 1994,
he asked for his job back.
Hughes rejected his application immediately. Hernandez says this was because he was an addict.
Hughes says it was because of their unwritten zero-tolerance policy of never rehiring employees
terminated for misconduct. Hernandez sued Hughes under the Americans With Disabilities Act claiming
his application was rejected as a result of his drug use, which constitutes discrimination.
The Supreme Court agreed to hear the case because thousands of businesses have similar no-rehire
policies, and if they all violate the ADA, warns Raytheon, we'd have federal law giving addicts a
mandatory second chance.
One other piece of legislative weirdness to note: The ADA does, in fact, define addiction as a disability,
but only recovered and recovering addicts qualify. The ADA offers no protection to current users of
drugs, which means that you are only an addict for ADA purposes once you're either being treated or
The court took the case to tackle the thorny issue of whether drug addiction really does constitute a
disability under the ADA, rendering all zero-tolerance policies invalid. But they can't quite get past the
factual dispute about whether Raytheon had such a policy. And the fact that there's a factual dispute
suggests this case wasn't a good candidate for summary judgment. Justice O'Connor: "I might agree
with you that the no-hire policy is lawful," she says, but there seems to be a genuine issue of fact about
whether there even was such a policy in this case. The allegedly neutral "policy" may have been a
pretext for discrimination against addicts.
Phillips insists that there is no dispute that the policy exists, pointing to Footnote 17 in the 9 th Circuit
opinion, which seems to concede this point.
Stephen Montoya represents Hernandez, and gets into hot water when Justice Scalia asks him to
reconcile his contention that Hughes had a no-rehire policy with Reinhardt's Footnote 17, finding they did.
"I can't," confesses Montoya, and it is indeed unfair that the 9th Circuit decided the case on a different
theory than his own. The court wants Montoya to argue Reinhardt's theory. Montoya wants simply to
convince them that Hughes' policy was a pretext. Montoya squirms while Scalia levels with him: "We
didn't take this case to decide whether or not there was a policy," he says. "We assume the policy exists.
It's an important proposition, whether such a policy violates the ADA. You care about it, I know. But
that's not what's important to us.” It takes a brave man to screw the little guy, but it takes a braver one to
tell him that he's totally immaterial to the case he's brought.
Finally, the court seems to agree that Hernandez has never even recovered from his cocaine addiction.
So let's recap: We were supposed to be hearing a case about whether blanket bans on rehiring drugaddicted workers violate the ADA. But instead, we go nine rounds on whether the plaintiff is recovered
enough to be discriminated against as an addict, under a policy that may or may not have existed, for
purposes of a law that plainly cannot protect him.
It's a good thing Joel Hernandez has found Jesus. Because the meek and downtrodden are not the
concern of the court today.
s e x u a l__h a r a s s m e n t__l a w:
-----BY LAURA GREEN | I have to begin with a confession: The topic
of sexual harassment wearies me. I've done my best to avoid this
1990s cultural cataclysm as much as possible. By using extreme
caution when opening the newspaper or turning on the television,
I've managed to avoid precise knowledge of what revealing detail of presidential anatomy Paula Jones
possesses. I'm still confused about why someone would tape telephone conversations with a friend. If I
didn't think it would destroy my cultural credentials, I would even confess to not having watched a single
moment of the 1991 Anita Hill-Clarence Thomas hearings.
Given this attitude, I spent much of this weekend's Sexual Harassment symposium at Yale University
longing for some green, remote planet -- a planet with no America, no lawyers and no talking heads -where words like "unwelcomeness," "accountability" and "dispositive" have never been uttered.
The symposium -- a gathering of some 40 law professors, federal judges and other experts on sexual
harassment law including Catherine MacKinnon, a Yale J.D./Ph.D. -- marked the 20th anniversary of the
publication of MacKinnon's monograph "Sexual Harassment of Working Women." Groundbreaking though
it was, MacKinnon's work, with its dedication to a stark male/female opposition, partly explains my
distaste for the subject. On the one hand, we have MacKinnon, for whom sexual harassment is just one
more instance of the principle that men unilaterally and everywhere dominate women. She has written
that "male and female are created through the erotization of dominance and submission. The man/woman
difference and the dominance/submission dynamic define each other." In her opening remarks at the
conference, she summed up her view of the achievements of sexual harassment law in typically
polemical terms: "Droit de seigneur is dead. Women are citizens."
On the other hand, we have critics of sexual harassment like New Yorker writer Jeffrey Toobin, who seem
to think that the most likely victims of sexual harassment are men oppressed by the law's scrutiny of
sexual behavior. These two positions form the shrill, point/counterpoint battle of the sexes that is what I
object to about the public debate over sexual harassment.
In that context, the academic seriousness of the symposium made a refreshing change. Its 72 hours of
citations of case law, cautious policy recommendations and illustrative anecdotes erred, in fact, on the
side of sobriety. The opening session took place in a wood-paneled, mullion-windowed auditorium filled
with nicely dressed academics. In her opening remarks, MacKinnon's fellow anti-pornography activist,
Andrea Dworkin, voice trembling with rage, decried the fact that "when [in prosecuting pornography] we
try to go after a bunch of pimps, everyone rears up and says no, no, no." The audience clapped politely.
Later, when appellate Judge Guido Calabresi paternally reminded the audience that "women have
represented some things that have been essential to society," the audience clapped politely again.
But this very gentility, however soothing, belies the volatility of opinion on sexual harassment. From the
reverence with which speaker after speaker at the symposium paid her or his respects to MacKinnon, for
example, you wouldn't have known that many pundits view her as a cross between Jesse Helms and
Valerie Solanas. After all, MacKinnon first became publicly recognized not for her work on sexual
harassment, but for her anti-pornography activism. The Minnesota anti-pornography ordinance that she
co-authored with Dworkin in 1983 defined pornographic representation as "a practice of sex
discrimination, a violation of women's civil rights, the opposite of sexual equality." In other words,
pornography and the unwelcome workplace proposition are, in MacKinnon's schema, the same kind of
violation of women's civil rights. Since her anti-pornography stance makes liberals generally, and First
Amendment advocates in particular, very uneasy, her association with sexual harassment law probably
contributes to its current unpopularity.
This conference certainly demonstrated the availability of sexual harassment law for parody. The legal
doctrine produces ludicrous hypotheticals of the kind lawyers seem to love. Take the problem of the
"bisexual harasser," for example. Is it discrimination based on sex if a bisexual supervisor sexually
harasses male and female subordinates equally? Or consider the six scenarios of ascending complexity
presented by William Eskridge, a Georgetown law professor. These scenarios culminate in the case of
"Mechelle Vinson, bank teller, [who] is groped and threatened with rape by her bank supervisor, Sidney
Taylor, after he finds out that Mechelle is a male-to-female transsexual." Has Taylor harassed a woman?
Is sexual difference necessary for sex discrimination? If so, are we sure we know what sexual difference
More seriously, as Eskridge also pointed out, the ambiguity of the word "sex" in "sexual harassment" can
make apparently non-sexualized forms of harassment, such as letting the air out of a co-worker's tires,
hard to adjudicate. Does the word "sex" refer to gender differences or erotic interaction?
More recent criticisms of sexual harassment law focus not on its conundrums, however, but on allegations
that it interferes with routine sexual interchanges. This criticism has been made not only by journalists
such as Toobin, but also by feminist academics such as Jane Gallop, herself once the target of sexual
harassment charges. Symposium participants spent a lot of time attempting to defuse and reverse this
claim. MacKinnon suggested that it's critics of sexual harassment law, not its advocates, who assume that
"if sex must be equal, the end of sex must be at hand." Dworkin went for sarcasm, characterizing
opponents of sexual harassment law as "millions of men [who] want to have a young woman in the
workplace to suck their cock." Others, like social psychologist Louise Fitzgerald, look to experimental data
that suggest that "men are more likely to perceive sexual motives and intentions."
So yes, sexual harassment law is open to confusion and parody. It probably doesn't help that one of its
architects is a polemicist and provocateur, who began "Sexual Harassment of Working Women" with the
statement: "Intimate violation of women by men is sufficiently pervasive in American society as to be
nearly invisible." Nevertheless, after listening to 72 hours of earnest legal discussion, I did leave feeling
that sexual harassment exists, harms women predominantly and can and should be redressed by law.
It may be hard not to hold the advocates of sexual harassment law responsible for cluttering the airwaves
with unsavory and ultimately tedious details of everything from presidential priapic anatomy to
pornographic preferences in the highest court in the land; with creating a new and ugly plot line in that
long-running soap opera of "he said, she said"; with providing new occasions for litigation and
lamentation. But as MacKinnon herself wrote over a decade ago -- in a formulation reiterated by many of
the conference speakers -- "Sexual harassment, the event, was not invented by feminists; the
perpetrators did that with no help from us."
SALON | March 3, 1998
Harassment backlash
When Angelo Armenti embarked on a witch hunt for professors accused
of indiscretions, he became a case in point for why sexual harassment
policies just don't work.
BY MATTHEW DALLEK | n May 1992, the board of governors in
charge of the university system in the state of Pennsylvania plucked Angelo Armenti Jr. -- then a dean at
Villanova University -- from the ranks of college officialdom and installed him as president of the California
University of Pennsylvania, a mid-size, oddly named state school on the banks of the Monongahela River
30 miles outside Pittsburgh. At the time the move seemed like a shrewd one: California was in need of
money and students, and Armenti seemed a good bet to provide both. The director of planning at
Villanova, he had a reputation as a superlative fund-raiser, a can-do administrator and an affable,
articulate up-and-comer in the world of higher education.
But the newly minted president soon found himself embroiled in controversy. In 1992, the year Armenti
arrived on campus, a female professor at California's business school and two department secretaries
accused Arshad Chawdry, a highly regarded professor, of making crude advances toward them -- playing
with their hair, kissing and hugging them, touching their breasts. At the time, the university lacked
procedures for investigating such complaints, and at first Armenti adopted an evenhanded, if mediagenic,
approach to the case, mixing strident pronouncement about the evils of sexual harassment with fretful
laments about the decline of "collegial relationships" on campus.
But when the Justice Department sued California in April 1996 for failing to follow up on the women's
claims, Armenti abandoned his middle-of-the-road stance and announced a war on sexual harassment. In
July of that year, the president fired Chawdry, awarded $600,000 to two of his victims and announced
new sexual harassment policies for the campus. Armenti was also busy investigating other complaints,
and before the year was out the president had suspended, dismissed or demoted four professors
accused of sexual harassment.
Then the roof caved in on him. In 1997, outside arbitrators began to review all four harassment cases,
including Chawdry's, and in recent months they have all ruled against Armenti. They derided the
president's decisions as arbitrary and vengeful and ordered him to rehire the professors and cough up
back wages. Since then, things have gone from bad to worse for Armenti. Three of the president's targets
slapped him and the university with hefty civil suits; California's faculty -- one of the better-paid in the
nation -- is clamoring for his resignation; and a spate of articles in the Pittsburgh Post-Gazette has kept
the imbroglio in the public eye.
But what happened at California, remarkable though it may be, is far from anomalous. At universities
nationwide, male professors charged with groping, fondling and smooching are seizing the offensive,
blistering accusers, suing university higher-ups and winning large legal settlements. A University of Maine
professor accused of pawing a female student (he touched her on the shoulder and helped her put on her
coat) received $500,000 in damages from his institution, while the University of Puget Sound recently had
to pay a whopping $1.5 million to a professor wrongly accused of harassment. Such stories may have
seemed surprising a few years ago, but not now. A burgeoning nationwide backlash against sexual
harassment is under way, and events at California show why.
California seems an unlikely center of sexual harassment controversy. Situated in a one-stoplight town in
rural southwestern Pennsylvania, the 5,300-student college boasts grassy knolls and a venerable history
of higher learning in placid environs. "For almost 150 years," Armenti writes in his welcome letter to
prospective students, "this institution has been a beacon of hope and an island of tranquillity in a very
turbulent world. This university has witnessed and survived the Civil War, two World Wars, the Great
Depression and countless other challenges in its long and magnificent history."
With his mane of gray hair, Ph.D. in physics and predilection for silk suits, the middle-aged Armenti hardly
seems a likely champion of women's issues. But in recent years he has become an ardent crusader
against sexual harassment on campus. There are several reasons for this.
Like many of his colleagues around the country, in the 1990s Armenti became increasingly afraid of
lawsuits. In 1991 Congress amended Title VII of the Civil Rights Act to allow plaintiffs in sexual
harassment cases to sue their employers. Chilled by the thought of mammoth attorneys' fees and bankbusting legal settlements, administrators and trustees decided that it was better to err on the side of
caution, adopt stringent rules against sexual harassment and move swiftly at the first whiff of scandal. "It
wouldn't take many more settlements like that to bankrupt us," Armenti said after shelling out $600,000 to
settle the Chawdry case. "When we don't follow the Justice Department order and take sexual
harassment on campus seriously, we can expect six figures taken out of our operating budget."
Armenti had also grown increasingly sensitive to women's issues. Soon after taking office he hired as his
special assistant Dolores Rozzi, a onetime sexual harassment expert in the Clinton administration and a
big believer in the need for more female deans. In recent years Armenti has made repeated statements
about protecting university women from Bob Packwood wannabes and other campus lechers, and he also
came to see a sexual harassment crackdown as a way of endearing himself to students, satisfying
university trustees worried about their institution's financial health and getting back at faculty critics who
have accused him of interfering with undergraduate grades and admitting student athletes with criminal
pasts and shoddy academic records. But in his drive to expel "predators" from campus, the president
made several serious missteps, running roughshod over professors' rights, sullying their reputations and
violating fundamental tenets of due process. Take, for instance, the case of Bob Brown.
In early 1996, Cheryl Gray, a graduate student in the school's Education Counselor program, accused
Brown, a professor, of cavorting in public with one of his students. When Brown got wind of the
accusation, he confronted Gray after one of her classes. Most witnesses said Brown was restrained
during the encounter, but Gray thought otherwise and complained to administrators that Brown had
threatened her. Armenti conducted what by most accounts was a hasty investigation into the matter, and
on May 9 of that year, a month after the Justice Department filed suit in the Chawdry case, he fired
Brown. "I am persuaded that whatever mental or personality condition may have led you to the despicable
behavior described above," the president wrote the professor that day, "it is not something that is easily
treated or rectified ... and is one of the most evil things that someone can do at an institution of higher
Nor did Armenti stop there. Shortly after firing Brown, he suspended William Parnell, Brown's colleague
in the Counselor Education program, for giving Gray an F, allegedly by way of retaliation. Then Armenti
did something really strange: Using money from the president's discretionary fund, Armenti hired a private
investigator to investigate the two professors' pasts. While the P.I. was digging for dirt, Dolores Rozzi
began calling former students to see if Parnell had ever harassed them sexually. When the dust had
settled, Armenti had charged Parnell with four counts of sexual harassment. The only problem was that
the charges were between seven and 19 years old, the Department of Education had already investigated
and dismissed one of them and another had been lodged by a felon convicted of killing her husband.
Critics have also accused Armenti of acting too hastily in the case of Phil Hayes, California's longtime
dean of students. In 1995, a California undergraduate complained to the president that a male student
had raped her and that Hayes had rebuffed her requests for help and instead sided with her alleged
attacker. Armenti again turned to an outside investigator, this time spending $4,500 on Caroline Roberto,
a Pittsburgh lawyer. Roberto subsequently found that Hayes had discriminated against the woman,
concluding -- wrongly as it turned out -- that the dean had helped the alleged rapist raise bail money. She
recommended that Hayes be replaced with a female judicial officer. Roberto's report, apparently, was all
the evidence Armenti needed. On the first day of fall classes in August 1996, the president stripped
Hayes of his deanship and reassigned him to the school's purchasing department, a bureaucratic outpost
that held little appeal for the former dean.
The firings and demotions stunned the campus community, and left many faculty members dumbfounded;
what, they wondered, was Armenti doing? The president has repeatedly argued that what he was doing
was making the campus safe for students. "[I have a] responsibility to create a safe haven here," he
explained at one point. "I won't tolerate sexual harassment." Based on his statements, Armenti seems
genuinely committed to stamping out sexual harassment, and for that he should be commended. But in
his mad-dash drive to extirpate predators from California, the president showed what can happen when
an overzealous administrator decides to take sexual harassment matters into his own hands.
In the last year and a half, Chawdry, Brown, Parnell and Hayes have all won vindication from arbitrators
who have ruled that in his rush to judgment, Armenti relied on faulty facts, shoddy investigations and
trumped-up charges. The decision in the Hayes case was typical. In his report, arbitrator Myron L. Joseph
argued that the allegations against Hayes "were based on rumor and innuendo" and called Roberto's
Report "a particularly unreliable hearsay document" riddled with errors. "She ... has no independent
memory of what any of the interviewees told her," Joseph wrote. "She did not retain her notes and did not
record her interviews. The people she interviewed were misled concerning why they were being
questioned, and ... the record established that the questioning was not objective and that the individuals
who were questioned were pressured to give answers that satisfied the interrogators ... The president's
action was based on unfounded allegations, and an inadequate and grossly flawed investigation."
Life at California these days continues much as it has for the past 145 years. Professors teach classes,
students attend them and deans and administrators file papers, hear complaints and keep the campus up
and running. Armenti is also back to work. Despite the arbitrators' findings, the president remains a
relatively popular figure on campus. Students describe him as friendly, approachable and a leader in
touch with their concerns, while trustees, pleased with Armenti's fund-raising prowess and administrative
abilities, recently rewarded him with a three-year contract extension.
Yet the controversies there have raised several important questions about sexual harassment policies at
American universities: How, for example, should college administrators respond to charges of sexual
harassment? Should presidents and deans be responsible for gathering evidence, holding hearings,
investigating faculty members and adjudicating claims? Or would they be better off recruiting outside
lawyers to do those jobs? Should select administrators, versed in the nuances of harassment law, preside
over judicial tribunals? Or should professors be allowed to sit in judgment of their peers?
There are few easy answers here. Sexual harassment is one of the most vexing issues confronting
American universities, but all the reforms in the world seem unlikely to alter that fact. Still, campus judicial
systems need improving. As the controversies at California show, administrators often fail to strike a
balance between the claims of accusers and the rights of the accused. These are basic responsibilities of
college presidents. Angelo Armenti may not have grasped them as such; but perhaps his colleagues will.
SALON | Dec. 14, 1998
Sexual Harassment
Salon magazine: Laura Miller on two new books that explore the ambiguous terrain of sexual harassment.
By Laura Miller
---------May 14, 1997 | few contemporary controversies resemble the legendary Gordian Knot so much as the
issue of sexual harassment, but beware anyone who claims the ability to cut through it with the sharp
swords of law or theory. Alexander the Great died 2,300 years ago -- and besides, sorting this one out is
no job for a soldier.
The American military's own inability to cope with the intricate shiftings of modern sexual politics proves
that. One day the drill sergeants in Aberdeen, Md., are carrying on as if their trainees are some kind of
commissioned personal harem, the next Staff Sgt. Delmar Simpson is being sentenced to 25 years of
military prison for "raping" several women who admit to having "consented" to sex with him. For everyone
who considers that penalty extreme, there's someone else who believes that boot camp is an artificial
environment where ordinary notions of autonomy and responsibility don't apply, and therefore the Army is
entitled to its own peculiar definition of rape.
Of course, in this case, there's also the matter of race (Simpson is black and some, but not all, of his
accusers are white), the Army's recent history of embarrassing sexual harassment scandals, the quarrel
over whether women belong in combat units to begin with, the possibility that the women involved might
have used their relationships with Simpson to advance their standing in his unit, and so on. Every sexual
harassment case seems to resemble a Talmudic text, a puzzle of multiple facets and infinite complexity,
something that could be studied for years and still yield new angles, insights and interpretations. Freud
observed that every time a couple goes to bed, six people actually participate -- phantoms of the lover's
parents play a role in the tryst, as well. Sexual harassment cases multiply this crowd: By the time a
charge goes public, the entire citizenry has piled into the room, ready to duke it out in earnest.
Confronted with such a mess, sensible people are likely to tear their hair, toss up their hands and despair
of ever finding a way to apply the law fairly. But in case you haven't noticed, sensible people are rarely
consulted in these matters. They're so much less entertaining than the ranters and grousers, the feminist
ideologues with their hothouse analyses and the coot pundits with their soft spot for the Bad Ol' Days.
Universities, in particular, have seen some pitched battles over sexual harassment, and as a result, it's in
academia that reasoning feminists are colliding with their more fanatical sisters. Those tortuous collisions
are sparking some fascinating new books.
"i've become a spectacle," writes Jane Gallop, a professor at the University of Wisconsin at Milwaukee
and the author of "Feminist Accused of Sexual Harassment," a slim volume describing her response to
finding herself in that odd situation. Gallop, a veteran of the Women's Studies movement of the 1970s,
was found innocent of harassing the two female students who accused her, but still censured for
engaging with one of them in a "consensual amorous relation." (Her university, like an increasing number
of others, prohibits any such relationship between teachers and students.) That relation consisted of
flirtation and sexual bantering, culminating in one passionate, exhibitionistic kiss before a group of
colleagues in a lesbian bar.
Gallop argues that the teacher-student relationship, especially at its most fertile and exciting, is by nature
one with erotic qualities. Like the dynamic between a therapist and her patient, it stirs up intense, often
infantile emotions (what psychologists call "transference"). She believes that the campus feminists and
affirmative action administrators who reprimanded her seek to divorce the intellect from the libido, a
prospect she finds dehumanizing and dull.
This argument initially makes Gallop a sympathetic figure; she's the lone proponent of passionate, risky,
vital teaching squared off against a passel of life-denying PC puritans. And the charges leveled against
her were ludicrous and overwrought, smelling suspiciously of sour grapes and hurt pride. But Gallop's
personality, as revealed in "Feminist Accused of Sexual Harassment," is disturbingly reminiscent of the
professor's in David Mamet's play "Oleanna," about a female student who accuses her male professor of
sexual harassment. In the play, it's clear that the professor never did hit on the student, but it's also clear
that he handled the girl's emotions with a thoughtless brutality that shattered her already fragile ego. She
had a legitimate gripe, but one she could never prosecute; her sexual harassment charge is
metaphorically appropriate.
Although Gallop also never technically seduced her students, she evinces much of Mamet's professor's
complacency, with her sense of her own importance, her smug assumption of her flawlessness. She's the
kind of swashbuckling, provocative academic theory "star" post-structuralist graduate students swoon
over almost as breathlessly as teenage girls sigh for pop idols. She's not so much angered that anyone
could be charged with sexual harassment on such flimsy pretexts as she is outraged that she should be.
She mostly seems irritated at being interrupted in the act of contemplating her own "bold," "clever,"
"sassy," "smart," "sexy" baaad feminist self. Although her memories of being "turned on" -- intellectually,
socially and sexually -- by her adventures in the early women's movement are tonic reminders of headier
times, she never ponders why so many young academic women today are gravitating toward a grim,
fearful, "protectionist" version of feminism instead. She never asks herself why the field of women's
studies -- the institution she helped build -- attracts such personalities and fosters such behavior, and
what her own responsibility might therefore be. Not a whiff of self-questioning ever enters the hermetically
sealed righteousness of "Feminist Accused of Sexual Harassment."
Quite the opposite is true of Helen Garner's "The First Stone," an account of a sexual harassment
scandal that roiled the exclusive Ormond College at the University of Melbourne. The Australian novelist
and journalist's book is subtitled "Some Questions About Sex and Power," and mostly that's what it is: a
squirming mass of meditations that eat their own tails -- reactions, second thoughts, third thoughts,
probing interviews, bitter arguments, soul searching and confession. In that, it feels both closer to the
daunting realities of the sexual harassment controversy and -- in its fearless commitment to expressing
the truth and fostering a just relationship between the sexes -- more feminist than anything I've read in a
long time. Garner strikes me as trustworthy precisely because she doesn't pretend to have figured it all
out, to have a one-size-fits-all theory for what sexual harassment is and what should be done about it.
Briefly, the Ormond College scandal ignited when two female students accused a male administrator at
the school of harassing them (touching their breasts and, in one case, talking suggestively) during a
somewhat drunken campus party. For months after the party, various officials bumbled around with the
charges while the man himself, Colin Shepard, remained uninformed. Long after the event, he was
brought into the local police station and charged with "indecent assault."
When Garner read about Shepard's arrest, she felt a "jolt" at the rage and severity of the response to
what sounded like a "clumsy pass" by a "poor blunderer," the kind of thing feminists of her generation
(now "pushing 50") shrugged off. Shepard's career was ruined, and his family (who Garner found decent
and unembittered) traumatized by the trial and its aftermath. To Garner, who had spent her youth
campaigning for abortion rights and against sexual discrimination, the case felt like a "destructive,
priggish and pitiless" travesty of feminism's original, expansive quest for social justice.
Garner's investigation of the case introduced her to the tut-tutting old boys' network that once reigned
supreme in Ormond's pre-coed era, and to a new breed of feminists, "cold-faced, punitive girls" bent on,
in their own words, "retribution," like the vengeful God of the Old Testament. She had long, surprising
talks with her friends, filled with revelations of past rapes and sexually predatory teachers and bosses.
She worried about being out-of-date politically, of inviting the "scorn" of her daughter's generation for her
soft position on the vagaries of sexual power. She juxtaposes Shepard's offense with the horrific reports
of sexual violence that studded the daily papers at the time. But one thing she never did was talk to Colin
Shepard's accusers. The two women, and nearly all of their supporters, utterly stonewalled Garner after
branding her as unsympathetic.
Much of "The First Stone" relates Garner's multifarious, exasperating efforts to get these women to tell
their side of the story. She writes letters that plead and others that fulminate about the need for "open
discourse," all to no avail. Even so, the case grows whole new annexes of possible meaning as she goes.
Did the college fail to back Shepard up because he was considered a somewhat gauche outsider, and a
relatively painless sacrifice to a troublesome and vocal campus minority? Could the conflict have been
resolved without the police if the college had had a mandated procedure for such cases? Who circulated
the inflammatory anonymous leaflets suggesting that Shepard was a potential rapist and urging women
students not to "panic"?
Garner raises many intriguing questions, but perhaps the most pressing is this: What causes "the
mysterious passivity that can incapacitate a woman at a moment of unexpected, unwanted sexual
pressure"? At the party in question, after being allegedly fondled by Shepard, one complainant quietly
retreated to a group of friends. "The spontaneous collective response was to make it look as if nothing
untoward had happened ... Everything they did was directed at protecting him from knowing that he had
offended her." Was the wrath finally unleashed on Shepard the pent-up result of dozens of other incidents
with many other men, none of whom were confronted with the disagreeableness of their advances? Does
vanishing into a group -- whether friends on a dance floor or a cadre of anti-sexual harassment activists -ever help a young woman achieve the kind of self-possession that makes deflecting unwanted passes
less than a federal case?
When "The First Stone" was originally published in Australia, it raised what Garner calls (in the afterword
to the American edition) a "primal" furor, and, predictably, Garner was falsely accused of making all sorts
of ridiculous statements. The book, she observes, "declines -- or is unable to present itself as -- one big
clonking armour-clad monolithic certainty." This inflames readers who "located their sense of worth in
holding to an already worked-out political position ... permanently primed for battle, they read like tanks."
Fortunately, the book found many more readers who were "relieved that ambiguity might be re-admitted
to the analysis of thought and action."
Perhaps it's no coincidence that, as these passages indicate, Garner writes with so much more fluidity,
color and eloquence than Gallop, whose stilted prose suggests a jargon-jockey awkwardly playing to the
bleachers. One writer trusts the average, intelligent reader with the raw, confusing truth; the other simply
seeks to consolidate her position as prophet of the One True Feminism. One demonstrates the strength
of her convictions by her willingness to re-examine her politics; the other is miffed at being challenged at
all. To help us find our way to just, humane policies on sexual harassment, we need thinkers able to
describe the terrain as it really is.
Too sexy for my shirt
It's spring, a time for many men to sexually harass women on the streets in the crudest of terms. Should
there be a law against it?
By Debra Dickerson
---------May 21, 1999 | WASHINGTON -- I am a spectacular beauty.
It's May now, and I walk the streets of the nation's capital free from my shrouding winter coat, making it
impossible for male passersby to concentrate on their conversations. Cars slide to a precipitous halt at
the mere sight of me, fishtailing as their brakes lock. Heads swivel on necks made suddenly rubbery by
the merest glimpse of me. Eyes goggle. The glint of my ankle bracelet, the hint of a thigh as my skirt
blows around -- it's unfair, really, and I know I need to stop showing off "them fine legs." At least that's
what the helpful truck driver yells after swooping to a stop in his deuce-and-a-half mere inches from me.
My perfume, mingled with the inchoate sorcery that is moi, produces a fragrance so entrancing, so
beguiling, it can only be called eau de Debra and it drives men to lunacy. How could they not sniff and
snort with orgasmic pleasure, lips loudly smacking, nostrils piggily flaring, lest I fail to notice their
gyrations? What good are offerings made to a goddess who notices not?
So by all means, come a little closer. After all, I am woman and therefore a natural wonder. Like a
waterfall or a pretty stand of trees. Feel free to waylay me. Block my path to inform me that you heartily
approve of my "tight-ass" dress. Thank God that's settled. And don't forget to thrust your pelvis at me
while you address my breasts. We beauties like it. Why else would we dress "that way"? Don't just
scream at me from the far side of a four-lane road (across which I am apparently supposed to jog so that
our destiny can be fulfilled at the bus stop named Federal Triangle). Come up from behind and whisper
intimately, preferably Ebonically, in my ear. Mais oui, I'd love to "get witchou" ce soir, cherie. And you, Mr.
Businessman. Come right on over and "accidentally" rub your penis against my "gorgeous ass," as you
put it, as we wait at a light. Then look at me expectantly, waiting for the nooner which will no doubt now
ensue. I can take a compliment.
And you, in the beat-up Pontiac: Should I cruelly refuse to answer your catcalls of love, by all means get
out of your car and dog me for three blocks expressing your pain. I have now become a "fat, fucking
skank," not a beauty, but I understand. You have every right to be angry. And don't worry. No one will
intervene. But don't ask me for spare change while you're at it: Panhandling is strictly regulated and the
cops will be all over you.
I am a vision. I must be.
God, I love spring.
"It was spring for me, too," chuckles Northwestern University law professor Cynthia Bowman. "That's
when I got the idea for the article." Well, that and Thelma & Louise. It was 1991, two years before her
controversial article ("Street Harassment and the Informal Ghettoization of Women") would appear in the
Harvard Law Review and cause a national sensation. Already interested in the subject of sexual
harassment, she saw that infamous movie and came away struck by the audience's approving blood lust
when the movie stars blew up the pig truck driver's rig. An article was born when she ran afoul of her own
pig truck driver shortly thereafter. She was captive at a red light with her windows rolled down to enjoy the
beautiful weather when the two men in the next vehicle laid into Bowman with a stream of sex talk and
ridicule that crushed her. The confluence of events made her realize that she'd been repressing a lifetime
of such incidents. Canvassing her friends, she found that she was far from alone. Hooray for Hollywood;
the professor decided to fight back.
In her article, Bowman labels street harassment a grueling, humiliating and frightening fact of women's
lives "that has not generally been viewed by academics, judges or legislators as a problem requiring legal
redress, either because these mostly male observers have not noticed the behavior or because they have
considered it trivial and thus not within the proper scope of the law." It's certainly the case that many men
haven't noticed it. When I discussed this article at our staff meeting, a male colleague asked, "Are you
saying that when you leave this office, say to go to lunch, you'll be harassed?" He was shocked.
In her first-of-its-kind academic article, Bowman proposed an anti-harassment ordinance, featuring a
$250 fine, "but, if I had it to do again," she said, "I might leave that out. It was an afterthought. Everyone
fixated on the ordinance, but that's just the kind of thing you do in a law review article, you propose a
remedy. I just wanted to stimulate discussion of how the law too often ignores women." Stimulate
discussion she did. She was denounced from one corner of America to another as the epitome of political
correctness and feminism run amok, then held aloft as an icon by legions of pissed-off women who
wanted her to go even further. "I was astonished by the response," the rueful professor said this week,
tired from grading end-of-year exams.
She wouldn't have been astonished if she lived here in D.C. "Women who've lived lots of places tell me
it's worse here than anywhere else," says Denise Snyder, executive director of the D.C. Rape Crisis
Center which offers training in dealing with street harassment. Quantifying an essentially untraceable
phenomenon is extremely difficult, but it's certainly true that street harassment is a historically
controversial topic here. In 1990, a summer series of three Washington Post articles on street harassment
-- one journalistic, one essayistic, and one op-ed -- caused a firestorm.
But it wasn't until 1993, the year of Bowman's law review article, that war broke out, first locally, then
nationally. Washington Post writer Phil McCombs wrote "StareMasters: Every Day at Noon They Sit and
Watch Their Dreams Go By," detailing a benign week of girl-watching at a construction site. The lettersto-the-editor pages and phone lines at the Post were so clogged with responses that the paper's
ombudsman had to weigh in. D.C. Men Against Rape staged a protest at the construction site and
national columnists took sides. ABC and CBS called. Maury Povich even wanted to fly McCombs and the
construction workers to New York for a show. "Don't they have construction workers in New York?" he
sensibly mused in a follow-up piece.
Filmmaker Maggie Hadleigh-West believes D.C.'s street harassment is among the worst. "My hard-on
about street abuse formed when I lived in D.C.," she said. By the time she was living in New York, she
had become so fed up she made a documentary about it, "War Zone," in which she confronts men who
harass her. The original was shown in 1993 and caused the same kind of explosion that Bowman's article
had. The sequel debuts Friday at Chicago's Facets Cinematheque. Some of the men she confronts
become quite abusive. "When we oppose street harassment and speak up, we make them suddenly selfconscious, we make them give up a privilege. They don't like it."
Indeed they do not. And on this issue, women's anger crosses ideological lines. Amy Holmes, a policy
analyst with the conservative Independent Women's Forum and a widely featured political commentator,
frequently fights back. Recently harassed by a small group of men as she left her office alone at 10 p.m.,
they cursed her when she ignored their "hey, baby"s. "I was so mad, I whirled around and yelled, 'That's
why I don't talk to guys like you!' I've even flipped some of these guys off, and I'm a polite, normal young
woman. It's just gotten so bad." So bad in fact that TLC, a popular R&B trio of young women recently
recorded a song, "No Scrubs," about the losers who hassle women on the streets.
Why do they do it? We're not talking about gallantry, or playful flirting or simple, unfrightened
compliments. Why the abuse, the privacy invasion, the intimidation? Why do the construction workers on
my block, for instance, make sudden loud noises with their machinery as I pass so they can laugh when I
jump? I don't ask them. I'm afraid of escalation. When I lived in San Francisco, panhandling/drug
addict/psychotic bums supported by asshole tourists congregated in my North Beach neighborhood and
figured out my name and apartment. Remembering them tapping on my windows, I go to a different
neighborhood and ask street harassers why they do it.
"Aw! There y'all go, there y'all go!" one man goes off. "Always complainin' when you should be happy. We
like you, get it? We human men. We like your bodies. We like your ... your ... okay, I'll say it and it's your
fault because I don't even talk like this -- we like your titties! We like titties. We men. We like women, ain't
no fags round here."
"Can't please a woman these days less you ready to go to jail," opined one man, fury twisting his features
and making his nostrils flare.
"It's a compliment, alright, jeez," another said, eyes rolled heavenward in disgust. "Why is it so wrong to
tell you that you're pretty? How much time you spend getting dressed this morning? How much makeup
you got at home? Huh? It's for me, right? For men."
And if I don't care what random men think? "Maybe you're gay. Maybe that's all the problem, right there?"
His buddy, a quieter type who, alone among the five, had said nothing as I passed, added tentatively, "I'm
a human being, too. All you have to do is say hi." And if we don't want to? He thought for a minute. "Why
not just say it?" "It's a big miscommunication," Hadleigh-West says. "What they think they're sending is
not what we're receiving. They say they're trying to tell us we're attractive, desirable, sexy. We feel
assaulted." Says Snyder, "Men claim they do it to meet women. That's bullshit. There's a power dynamic
at work with street harassment. It's at the base of any sexual harassment. They don't really think they'll
get dates that way."
Adrian Davis, law professor at Washington College of Law at American University says street harassment
has to be understood as on a continuum with sexual assault and stalking. "Women's impulse is to react.
We want to respond when insulted but we fear assault. Sexual harassment in the workplace tells women
they can't have an 'economic personality.' Sexual harassment on the streets prevents women from being
able to fully enjoy the public sphere. If you leave home 'inappropriately,' i.e. to work or without a man, you
are disciplined with sexual harassment."
As does Bowman in her article, Davis points out (rightly, in my experience) that women are much less
likely to be harassed while with old people or children or, of course, a man. If I'm so devastatingly
gorgeous, why is this never pointed out while I'm with my fianc?
"Because they know it's wrong," says Snyder flatly.
Does it matter that this is most often pointed out to me (in graphic detail) by black men? Courtland Milloy,
in one of those three 1990 Washington Post pieces, lamented the "black men who [make] the district a
living hell for their sisters." Many of the female letter-writers made the same claim. Julianne Malveaux as
well has written about her own abuse from black males and the "contempt" some of them exhibit for black
women. "We are at the low end of the food chain for them," she writes. So, yes, it matters if only because
95 percent of the harassment I receive comes from them. If that's group loyalty, I can live without it.
This summer, the New York chapter of NOW's anti-violence committee is planning a campaign against
street harassment. "A lot of street harassment comes from men working on the streets -- movers, delivery
men. If a woman can identity the company the harasser is working for, NOW will send them a letter
describing the incident and asking them to take action," says Joanna Perlman of NOW.
Holmes disagrees with this tactic. "It's not a legal or employer problem. It's a social problem and that
tattletale approach will only exacerbate the problem. We need to ask why these guys feel entitled to say
these things, why men have forgotten to be civil and gentlemanly. The people who witness these
incidents, men especially, need to speak up. We need social pressure. If the police or companies are the
enforcers, people can tell themselves that harassers will be ticketed, it's not their responsibility."
I won't hold my breath until the people of America rise up and shame street harassers. I'll just keep hiding
behind my sunglasses and Walkman until winter comes again and I can disappear into my big, shapeless
In a misguided attempt to alleviate racial and sexual tensions,
corporate America is turning the workplace into a giant therapy
Illustration by Tracy Cox
As the nation struggled through its group therapy session on race last fall, courtesy of O.J. Simpson,
Mark Fuhrman and Louis Farrakhan, I found myself wondering why corporate America didn't have more
wisdom to share, based on its decade-long experiment with diversity training, the booming mini-industry
designed to cleanse the workplace of racism and sexism.
Two-thirds of big employers now run some kind of diversity program. From government agencies like the
FBI and the Federal Aviation Administration to firms including IBM, GE, AT&T and the New York Times,
American employers have been rushing their workers into diversity training since 1987, when a Labor
Department study projected that 85 percent of new workforce entries after the year 2000 would be
women or minorities. Have these company-paid field trips to the front lines of race and gender conflict
yielded a model for the nation?
Hardly. Never before have so many people been sharing their deep, dark feelings about race and sex,
with so little positive impact. Diversity training is everywhere because it plays into our American
predilection to talk our troubles to death, but do nothing about them. It reflects a laziness about change on
both sides of the race and gender divide. Whites, and men, want to be instructed on how to treat women
and other racial groups, instead of using common sense, curiosity and compassion to figure out how they
want to be treated. And women and people of color are looking for a quick-fix answer to discomfort in the
workplace, an alternative to the tiresome but necessary task of making clear how they expect to be
treated. Perhaps most damaging, the solemn, moralistic tone of most trainings sends a destructive
message -- Diversity Is a Drag -- rather than helping companies, and individuals, see the creativity that's
unleashed when cultures mix well.
While most criticism to date has come from conservatives and beleaguered white men, there's a scathing
critique to be made by advocates for women and racial minorities, in whose name such training is sold.
"Training is becoming a substitute for dealing with the real issues that prevent women and minorities from
succeeding," says Aileen Hernandez, a former NOW president, Equal Employment Opportunity
Commission director and veteran corporate trainer.
That became clear to me after I spent 18 months examining the ambitious diversity training program of
a mid-sized California software maker, The Santa Cruz Operation, Inc. (SCO), for a Glamour magazine
feature. A national diversity expert recommended the program as "a model of what these programs
should be." It began in a time of crisis: the firm's founder and CEO, known for his wandering hands, was
sued by four secretaries for sexual harassment. Diversity training was SCO's answer to the public
relations and morale crises that ensued.
To its credit, SCO set out to develop a diversity initiative that went beyond talk. It got 110 employees
involved in diversity task forces, looking at how the firm could advance women by subsidizing childcare,
increasing flextime for mothers, even recruit a woman for SCO's white, male board of directors. But those
ideas hit internal roadblocks and went nowhere. The centerpiece of the effort turned out to be what it
usually is: diversity workshops for managers.
The workshop I attended was typical: middle managers squabbling about who's to blame for race and
gender inequities at the firm. The session got hot when a facilitator pointed out that all but one of the
Fortune 500 CEOs are white men. A white manager I'll call Tim erupted in anger.
"Do you think every white guy in America is going to be CEO?" he shouted. "Eighty to 90 percent of
CEOs are Episcopalian; I'm Irish Catholic. The Irish had it rough here, too! Now I'm being categorized as
a white guy!"
A woman from Human Resources I'll call Rita responded in a soft voice, near tears. "Tim, how do I deal
with the fact that in my department, everyone knows that the men are being promoted ahead of women
who've been there longer? We don't know why, except that all the men go golfing and sailing together,
and make all the rules. And I'm watching good women leave the company. What should I do?"
Tim stared down at his tasseled loafers, uncomfortable. "Go to Human Resources," he said, apparently
forgetting that was the division she was complaining about. "I believe you, Rita, but I don't think it's about
being a woman, it's about being perceived as weak."
The dramatic conflict went unresolved. But Rita returned to work to learn her frank comments had been
reported to her boss; Tim, by contrast, was within months promoted to director.
In another tense training moment, an accounting supervisor named Lynn went head to head over sexism
with a human resources manager I'll call Rick. Again, they argued to a draw. A few months later Lynn
sued the firm, charging she was sexually harassed by a supervisor, and Rick was named in the suit for
failing to address her complaint properly. Clearly diversity training didn't help Lynn and Rick communicate
about sexual harassment.
Not long after the training I attended, SCO's initiative unraveled completely. Its co-director, Gail Garrow,
resigned in anger, complaining the effort was just window dressing. Garrow claimed that she herself had
been sexually harassed just before the lawsuit against SCO's founder was filed, a charge the company
denies. "We used the sexual harassment scandal to our benefit, and management used us, as damage
control," she says now. SCO's affirmative action effort left untouched vast discrepancies between male
and female managers' salaries, Garrow charged, as well as a glass ceiling that meant only two of 19 vice
presidents were women.
SCO's juicy scandals make good reading, but is the outcome of its program typical? Aileen Hernandez
thinks its troubles are common in the field, thanks to the vexing paradox at the heart of diversity training.
"To have a successful program, you need to have some diversity already -- women and people of color
who are ready to advance -- and you need top management committed to advancing them," Hernandez
notes. "But if you have that, you probably don't need these programs. And if you don't, all the seminars in
the world can't make a difference."
The truth is that, as the SCO debacle painfully demonstrated, corporate diversity programs are
patronizing, quick-fix solutions to workplace tension. And they cause more backlash than positive change.
Compromise of 1850--First, California would be a free state and the rest of the Southwest territory would
be subject to popular sovereignty. Finally, interstate slave trade was safe from congressional interference,
and a fugitive slave law would return runaway slaves.
Missouri Compromise--Missouri admitted as a slave state, and Maine a free state. Congress drew an
imaginary line across the middle of the United States running from the east coast to the Pacific Ocean.
This imaginary line separated the states into free and slave states. Any new state entering the Union that
was south of the line would be a slave state. Any state north of the line would enter the Union as a free
Wilmot Proviso-- Proposal in the U.S. Congress to prohibit the extension of slavery to the territories.
Ordinance of 1787 (Great Northwest Ordinance)—a law that clearly indicated the western lands north
of the Ohio River and east of the Mississippi River would be settled and become states on a par with
existing ones. No fewer than three, or more than five, states would be formed. Civil rights and liberties
be guaranteed. Slavery and involuntary servitude be prohibited.
Three-Fifths Compromise—Counting slaves in the population for figuring representation that
established that three fifths of the slaves should be counted in apportioning representation; slaves were to
be treated as property in assessing taxes.