The AAPF March 27-28, 2003 Affirmative Action Conference Transcripts

The African American Policy Forum March 27-28 Affirmative Action Conference Transcripts

Section 1 (March 27) / Section 2 (March 28)

Section 1
Affirmative Action Teach-in

A) Panel #1: Understanding Grutter v. Bollinger Thursday March 27th, 2003

1) Gerald Torres, Professor, University of Texas at Austin: The Texas 10% Plan

What I want to do is a couple of things. First, for those of you who followed the developments in the Michigan case, you recognize that a few, god it was probably about a month ago I guess, The President gave a talk in one of his press briefings about the position the government would take in the Michigan case. And during that discussion, he extolled the virtues of a bill that he signed called – it was then called and it is still referred to as – Texas HB 588, or what has become popularly to be called the “Texas Ten Percent Plan.” And suggested that it was an example of what he calls affirmative access, as opposed to affirmative action. The next day, after his comments, the author of the bill wrote a letter to the Austin American Statesman local paper there. And the Austin American Statesman in fact wrote an editorial saying that the President shouldn’t take credit for House bill 588, what he didn’t do is veto it, and he did sign it. But beyond that, the idea for what’s come to be called the “Ten-Percent Plan” came largely from a dear friend of mine who just passed away last week, representative Ms. Von Helm from Kingsville. She was the chair of the House higher education subcommittee in the House of Representatives in Texas, she was the first Mexican American woman elected to the state legislature in Texas, and one of the first women elected to the legislature in Texas. And so when it came to being tough and smart, those qualities defined her. So, I think any benefits we’ve received in Texas flow to her, and when the book gets written on higher education in Texas, there will be a chapter dedicated to representative Von Helm. So, I actually dedicate these remarks to her. She was a remarkable woman.

Let me give you a little history though, about the plan. And I’ll try to keep it to twelve minutes I promise. And I want to talk about how it fits into our thinking about affirmative action.

If you pick up US News and World Report this week, there’s actually a quotation from me, and it says that “well, if you gave me the ten-percent plan and affirmative action, that’s something I would buy.” I believe that’s the quote, I can’t remember exactly. And I want to end up in telling you why I come out at that position. But, in 1996, with the decision in the Hopwood case, Texas was at that point, except for California which was under referendum, was the only state – and certainly the only state in the old south, and I count it as part of the confederacy, it was, it was part of the old south – that was no longer permitted to take race into account in any admissions decisions. It is also the school, as you recall, Texas, where the case of Sweat vs. Painter originated. So there was a kind of irony that Texas would be cast back to the days pre-Sweat against Painter, and that it would be the only state in the south that could not take race into account. The other two states in the 5th curcuit were under deseg. Orders that permitted them to fulfill their violations, or cure their violations, by continuing to have some forms of affirmative action. There were many meetings convened around the state about what to do. There were meetings that wanted to pursue the litigation and the litigation was, the appeals were pursued. The University spent over two million dollars, the law school spent over two million dollars, appealing the case. But there was other people wondering what we could do if we didn’t succeed in the courts. And as we fished around, we assembled a team of demographers, historians, political scientists, as well as graduate students to start doing some research. And one of the things that we discovered, we discovered a curious thing about the University of Texas. The curious thing about the University of Texas is that of the almost 1,500 high schools in Texas, the seventy-five percent of every freshman class had historically been made up of graduates from 150 high schools in the state (SIC). So there already was a ten-percent plan in Texas. It was a ten-percent plan, though, measured by high schools. So that it became curious to us where those schools were, and which schools, and which counties, which regions had been systematically denied admission. And we discovered great swaths of the state that had never sent a single student to the University of Texas. These included primarily Mexican-American south Texas, Black east Texas, but also included rural white Texas, conservative parts of the state that had never as far as we were able to determine sent anybody to Texas. So we started a conversation about that. And we asked the question about how state resources ought to be distributed. And whether there shouldn’t be a better way to assure that those people who pay taxes ought not be permitted to take some of the benefit of an education at a place like the University of Texas.

Now the other thing that’s important to remember is that – the other thing that we discovered in our research – is that there are two gateway institutions in Texas: there’s the university of Texas at Austin and the University of Texas A and M at College Station. By gateway institutions, what I mean by that, is if you do a longitudinal study of where the leaders of the state come from, in business, in law, in medicine, in politics, they come from one of those two, primarily from one of those two institutions – so that if you re segregated those institutions, what you would be doing in the long term would be closing the door and resegregating other institutions for which those schools operated as gateways. So it became critical for us to figure out a way to keep the gateway open and to broaden the entry. So, what representative Ron Helm produced was the ten percent plan.

The ten percent plan actually has two parts. And this is one thing, it’s critical and it gets missed from the debate quite often. One it guarantees to the graduates of any high school in Texas in the top ten-percent [of their graduating class] admission to any public school in Texas, but especially to the two flagship campuses, which is something different from the California plan or the Florida plan, and it gets overlooked, primarily because of the flagship function, I mean gateway functions that these institutions play.

There’s also a twenty-five percent plan in the Texas plan, which says that if you graduate in the top twenty-five percent, you’re eligible for admission into any public college in Texas. And then, there’s a second part of the bill, there’s a list of factors that the administrators can take into account in fashioning the rest of the admissions process.

So, what happened? In the first year after the “ten-percent plan” was passed, virtually nothing changed. The drop in minority enrollment, Black and Brown enrollment, was precipitous. And the President decided that something needed to happen. So he what he decided he would do was to increase the geographic distribution of schools that are feeder schools. And what the research also showed, and if we have anyone from [unintelligible/Ed’s] school or sociology here today, you’ve probably seen this research, is that within high schools you have embedded patterns of admissions. So there are certain high schools that send students traditionally to certain schools. And what we needed to do was intervene and change that patte
rn, embed a new pattern, of schools to which graduates of that school would aspire. And so what the president did is he created something called the Longhorn opportunity scholarship. You can all do this [Torres makes longhorn symbol with hand]. I want you to all do this tonight. I think we’re playing Connecticut. The Longhorn Opportunity Scholarship, and what that does, is that he then went to those schools and, using an algorithm, that had traditionally sent below the median number of applicants to UT, from all the students who took the ACT or the SAT, and which fit some of the SES criteria, that basically were poor schools. And he went and held assemblies and said look: “the top four graduates of this class get full four year scholarships. You’re guaranteed small classes. You get preference for on-campus housing. And you’ll become part of the Longhorn Opportunity Scholars.

He then went to these schools, the first year a small group and the second year a larger group. And an interesting thing happened. What happened was that the students realized that they were no longer competing against faceless people across Texas. They were competing against people who stood, sat in that room. And so those four top graduates would come, but a halo effect was created. So, the classic example, the one that jumps out is skylight high school in Dallas, a primarily African American high school where we traditionally had zero applicants. We went from zero to one to nineteen, all admitted under the ten-percent plan. Four full-ride scholarships. The rest of the kids are poor, so they got financial aid because it’s a need-based financial aid system. So, it was the aggressive outreach that has allowed the Texas ten-percent plan to have success at the University of Texas . It has not had similar success at Texas A and M. It is not a magic bullet. It does not in itself change the composition of classes, unless there is an aggressive action by the universities to make sure that they have that effect, that they change the composition, and that they change the diversity of the class, not just racially and ethnically, but economically and geographically as well.

Now, that’s kind of the practical effect that you can see. It’s actually had a more profound effect. The more profound effect is that it’s caused those of us who are concerned about admissions to realize that admissions officers by and large have been lazy. And by that I mean – Texas, you can see, is the largest university in the country, it has fifty thousand students at Texas, six thousand freshman each year, and thirty thousand applicants – you can get lazy, right? You don’t want to read every file. So if you just do the numbers, it gives you a quick way to think about who’s going to succeed. Well the funny thing that occurred, is that because people were admitted under the ten-percent plan who would not have been admitted before if you had just used the straight numbers criteria, there was a fear that the attrition rate would be enormous. In fact, the attrition rate has been smallest for those students admitted under the ten-percent plan, regardless of SAT score. When you hold GPAs constant, the people admitted historically with higher GPAs (sic. means SATs) have performed similarly with people under the ten-percent plan with lower GPAs (sic. means SATs), but who have performed well in high school. In each class, one of the things that the president remarked, is that students who would be predicted to perform poorly, are performing about two or three hundred points better than they should if you use the SAT as a predictor.

So, there was something in the process that we weren’t picking about the students admitted under the ten-percent plan, and it caused the administrators to go back and ask questions about that. And a couple of things have emerged. One other point, because it’s an important point. There’s a measurement called persistence. And persistence is the rate at which Freshmen come back for their sophomore year. If you disaggregate the data, of the subgroups who have the highest persistence rate, what people are surprised to discover is that it’s not white males, it’s not white women, it’s not Asians, it turns out to be African American women who are admitted under the ten-percent plan. And so the question that we have to ask is what weren’t we picking up about applicants who can succeed, but who we were not admitting. Their qualities of leadership, their quality of application, they’re qualities of self-conception, that these students have which allows them to succeed. And it gives us less confidence in all of the factors that we’ve used traditionally to predict who could best make use of university-level education.

Now, Lani Guinier and Susan Sturm in their article in the California Law Review called “The Future of Affirmative Action: Reclaiming the Innovative Ideal” kind of capture this point in a concrete way. Because there, there was an error in scoring the 1976 version of the Armed Services Advocational Battery test. A calibration error resulted in the admission to the military of over 300,000 recruits who actually failed the screening test used by the armed services, and it’s especially pertinent now, I suspect. “Studies examining the subsequent performance of these potentially ineligibiles,” right, these people who failed and would not have been allowed to serve in the armed forces, “found that performance differentials were not large, in several cases, PIs, potentially ineligibles, completed training, their attrition rates were not particularly high, and they were promoted at rates only slightly lower than their higher scoring peers, and they reinlisted.” So what that error showed them, was that the confidence that they had in their capacity to predict, using these testing devices, was a false confidence. And the thing the ten-percent plan has done, is it has kind of shaken the confidence the admissions officers have had in the devices they’ve used to apportion these resources. And so it’s gotten the argument back to the question over the mission of the school, and how the admissions policies can best be designed to meet the mission that the university sets for itself.

The ten-percent plan is not a panacea. No percent plan is a panacea. It will work, and it has worked at Texas. And this is why, when people start talking about percent plans, and they start talking about affirmative access. What you need to do is you need to go back and look very, very carefully at the way the University of Texas transformed itself, as much as the way in which the admissions policies were themselves transformed. Because that transformation is what was critical to the success that we’ve had with the ten-percent plan at the University of Texas.

I would like to talk longer, but I think I’ve already used up my ten minutes. There’s a lot more to say about this. And I would urge you, if you go onto the University of Texas home page, and you click on admissions, and then you click on research, we’ve done yearly reports of how the ten-percent plan has worked. We’ve looked at the way in which the ten-percent plan has generated geographic diversity, but we’ve looked more importantly at how the embedded patterns of feeder schools are changing, because that’s a critical transformation in the system of providing public education.

We also did a study of aptitude tests, the SAT and the ACT. And we needed to decide whether to keep asking for them. And we’ve decided to keep asking for them. Because we decided that more information is better than less. They do give us some information, they just don’t give us the information we thought they gave us before. And I urge you to read that report as well, because it’s a report about the uses of standardized tests in a process where the ten-percent plan was the main selection criteria.

We need another name for the ten-percent plan. Professor Sturm recommended one to me, I’m still thinking about it. But we need one because we need to disting
uish what Texas has done, in the face of a total prohibition on the use of race. And what the University of Texas has done, as compared to what the Univerisity of California has done or the state of Florida. Because what you don’t see is the kind of cascading that you see in California, or the kind of maintenance of the status quo that you see in Florida. I’m not saying the state of Texas as a whole, I’m talking about the University of Texas at Austin. Because it caused us to transform the experience of every Freshman that comes in. Because we found that the main thing that binds a student to a university as a Freshman is small-group experience. And so what we’ve had to do is to confect, and I use that word on purpose, the capacity to give each incoming freshman some small-group experience. So that we can try to increase the persistence of all classes of students, when you disaggregate according to race, gender, and income, to make Texas a better place for people to get an education. And in fact our experiments have benefited the university as a whole, and given us some humility about what we know and don’t know. And I’m done.

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2) Claude Steele: Stereotype Threat and the Mythical Power of Standardized Tests

I wish we could be there more materially than we are, but this will have to do I guess. In the discussions of distortions that have occurred in the discourse about affirmative action, there are a couple of general points I’d like to make in my ten minutes. One, I’d like to say just a few things about the admissions decision itself and to appeal to those who do it to be more and more multidimensional in the way that they think about admissions to colleges, especially elite colleges. Then I’d like to say a few things about tests that are just in the way of background. To give people some sense of the limited power of these tests to tap the kinds of things that we assume that they can tap. And from there I’d like to talk about some things that bias – as Erika [Woods] was pointing out – I think that contribute to the racial bias of these tests.

OK, the admissions decision, they are multidimensional decisions; multiple criteria are used in the admissions process. And I think this is very important because there is no single measure that we have that really is able to, adequately, definitively, objectively, tap into something like academic merit. If we could do that, that would be a wonderful thing, but we don’t have anything that’s even close to that. And in a minute you’ll see how primitive some of the things that we have actually are. This relates to a point that Gerald was making earlier about one of the side effects of the “ten percent plan” that when you do that you let in people who you wouldn’t ordinarily admit and you see that they are very able to succeed in that situation. So that does tell you that the admissions decision, the measures used to decide whether or not to admit someone to a school, are just not adequate – we are at a rather primitive level really.

Also, you need multiple measures, multiple criteria I guess is perhaps the better word in thinking about admissions, as a kind of checks and balance system. Each of these elements – grades, test scores, recommendations – have biases in them. They need each other to check the weaknesses of the other. For example in the Michigan case there is a lot of controversy about the twenty points awarded to applicants on the basis of race. But when you actually look at the way that the points are awarded in the Michigan admissions decision, you almost feel like these are not enough points. And the reason I’m saying that is because all kinds of other things also get points. For example, the region of the State or the Country you [lived in], that gets points. The quality of the high school you went to, whether the high school had AP courses and the like. And these are things that one’s race affects one’s ability to get. That is, it’s difficult – most African American students, Latino students, are not going to the strongest high schools in the state of Michigan or abroad and so are not getting, not really in a sense, eligible for those points.

They’re not going to high schools that have AP courses, They’re not eligible to get points in the admissions process on the basis of those things. Because of the way race organizes our society, because of the history of race and what all that means, they’re not as eligible to get other sources of points, so when you think about the twenty points they do get, you can see it as a valid part of checks and balances kind of system.

A few things about the test itself. I do think that most people in the public regard standardized tests, the SAT, the LSAT exam, the two tests involved in the Michigan case, to be pretty much objective and unbiased measures of the academic abilities of the person taking the test. And, in fact, I’ve even gone as to wonder whether or not there would be these suits if tests were not used at all in the admissions process. There’s something about the test that both of the complaintants in theses cases, that seems to give their case a kind of validity, certainly in the public eye, that I got higher test scores than other people who got in – I should therefore have gotten in. That I think bespeaks the sense that the test has some kind of almost reified place in our thinking as a valid measure of our cognitive abilities. We tend to think of them as measuring a unitary ability, a very general factor in the literature, this is often called the G-factor. We think of that ability as broadly applicable to many things, and we think that you can measure that ability in a single sitting. So we put a lot of cultural faith into standardized tests. That they can do something quite miraculous, that they can tap this very general ability that has broad application and that it can be measured in a single afternoon, so to speak. And I want to say a few things to shake our assumptions about that.

In psychology, we really have no theory or no description of the abilities measured by these tests. That’s a very important starting point when you think about a test. We cannot specify for anybody exactly what it is that those tests measure, what kinds of skills, abilities, intellectual strategies, knowledge-bases, anything. We can’t really specify what is in those tests.

They are constructed empirically. Items that discriminate good students from not-so-good students get included on the test and items that are not good at that discrimination do not get included on the test. And that’s the basic empirical on which those tests items are selected. They’re tested this way with each administration of the SAT or the LSAT. And so if you want to find out really what they tap into, you have to work backwards from basically some factor analysis of what the content of those items might be tapping into. So that has to be kept in mind: that we have a lot of cultural faith here, but we don’t have a lot of scientific knowledge that actually delineates the skills and knowledge bases that are tapped in those tests.

To boot, they don’t correlate that well with their criteria. That’s the primary way by which they earn their keep – to predict how well a person is going to do in college, for example. And they measure, they tap about eighteen percent of things that determine a person’s freshman grades. That’s the best figure that I can come up with. That’s the figure that ETS itself offers as a measure of the variance that SAT captures in predicting college grades. After the freshman year, that percentage goes down, and goes down pretty rapidly, by the time you graduate. And for criteria taken after college, it’s even lower.

So, even though it is thought of as having this cultural power, it doesn’t have that
much predictive power. It has some power, as Gerald pointed out, I’m not here advocating that we get rid of it at all. But it doesn’t begin to have the power that people think about it in the public mind. And that has been a distortion of the debate, perhaps. For example, it correlates dramatically well, it correlates a lot better with your income than it does with your freshman grades. It correlates so highly with your income, about .7 in some samples that I’ve seen, that’s so high, that you could almost use your family income as a proxy for your SAT, and you wouldn’t lose much of the predictive value of the test. So, that also tells me that the test is tapping into a certain kind of cultural membership that is – perhaps for that reason accounting for the predictiveness that it does have.

OK, those are just some general statements about the test, and I hope they help us position a little bit – it is not as powerful an indicator of academic merit that we tend to think of it as. And on top of that I think there are many reasons to suspect that it is going to have a variety of biases to it, certainly social class bias. And, I believe – and this is perhaps to the contrary of the standard psychometric position here – a racial bias.

I’m going to read just a list of things that I think are attached to a person’s race as they go through school. Some of these things I want to note are controllable, that is you can statistically control them and eliminate their effect on the predictiveness of a test. And some of these things I don’t think you can as well. But these are all things that I think would contribute to an effect of race on your test score. If you’re African American or Latino, the following things are likely to be true: you’re going to schools that are more poorly funded. You’re going to have teachers that are not a well-trained. You’re going to be on a daily basis, across the time in school, most studies show, treated in a somewhat different way. That is, it’s going to be harder for you to seek to present yourself in a way to have your abilities be valued and seen as having prospects and the like. You’re going to be exposed to more corporal punishment. You’re going to be tracked into lower classes. You’re going to go to a school that has fewer AP courses, you’re going to be counseled throughout your schooling with lower expectations on the part of school counselors and teachers. You’re going to have less access to test preparations. And you’re probably going to come from communities that are racially and socially segregated. All of these things are going to affect your access to the pool of material that is going to be present on a typical standardized test like the SAT to the LSAT. This is before you get into anything as psychological as stereotype threat and those kinds of processes. These are just features of one’s experience in the United States as being a member of one of these groups, that are likely to circumscribe your experience in certain ways as to, I would argue, disadvantage you with regard to ability to perform well on those tests.

And those tests are going to stand because of our cultural belief about them and as a measure of your cognitive ability. I have an interesting example. My son has a recording studio. And he records rap artists. And there’s just a very interesting phenomenon about that. These people are people who, in general, would probably perform very badly on standard cognitive measures, measures on verbal performance and the like. Almost assuredly, their test scores would be low. But when they come into the studio, they can do things with words that very few other people in our society can do. It is very difficult to acquire that skill. One has to start early and one has to develop it carefully and with a lot of discipline and focus, and it’s a very refined skill…that if it were the component of a cognitive test, you can imagine the results being very different. I use that as an example to illustrate how social and cultural segregation that is still tied to race in society can affect the ability of a test to measure accurately cognitive skills. Here’s a person with tremendous cognitive skills, that if you had a test to tap them would be a genius, … those skills picked up by the test we typically use…is very difficult to attribute that kind of skill to.

OK, after all that, and you’ve got kids who are very good at school and have access to a lot of the culture and cultural capital that is measured by standardized tests, there are other processes, and that’s where our research enters the picture, with the notion of stereotype threat. It’s a very simple idea. If you’re doing something, and you realize that in the midst of doing it you could be judged in terms of a negative stereotype or group. You know that you could be judged that way or treated that way. And if you care about what you’re doing, that can be upsetting and distracting. And if the negative stereotype that you’re contending with has to do with intellectual ability, and the place you recognize it’s relevance is in the midst of taking a standardized test…is you get to the frustrating portion of that test. You can imagine that that threat would be emotionally upsetting enough, distracting enough to undermine your performance on that test. And that’s basically what our research shows. And now in many, many samples and, fortunately, in many other laboratories, in American society and most of the continents of the world now, have demonstrated comparable effects in groups whose intellectual abilities are negatively stereotyped. The important feature of that research is that when you can experimentally do something that relieves the stereotype threat from that test-taking performance, you se the performance of that same group go up dramatically, which is the real crux of the evidence that it is the stereotype threat that is repressing performance under normal testing conditions. The things that we do to eliminate stereotype threat in the laboratory are very simple. I wish more of them we could use in real life. But there are things that we can do in the laboratory to remove the pressure that are not as easily done in real life. It is difficult to tell somebody in real life for example that a high-stakes test is not a high-stakes test, that it’s not seen by other people as a measure of ability. We can do that in the lab, and when you do that in the lab, you see people’s performance on those same items, same content, go up quite dramatically. This seems to be an effect that has its most powerful impact on the very students who are the most motivated, the most identified with doing well in school, and this is because we believe that they care about it the most. And so the prospect of confirming or being seen to confirm a negative stereotype about your race on a standardized test is a very daunting thing, a very upsetting thing, and it interferes with their performance the most.

We know a lot about how this is mediated now. We know that while that interference is going on, that is that while that student is experiencing stereotype threat on the test, their blood pressure is dramatically elevated, their working memory is impaired, their ability to process, to multitask is greatly impaired, and their ability to think linearly is greatly impaired. Uh, these are findings that have come together from the community of people now who do stereotype threat research. The precise processes by which it’s mediated are becoming clearer and clearer. The ways in which you can eliminate it are also becoming clearer. And I would say, without going into a lot of detail because I don’t feel I should take the time from Jory who’s going to talk in a second – I could say that the common sense picture of those things are things that make people feel more comfortable, more identity safe in a situation. Erika was talking about the effects of low numbers of minority students at UCLA, and the impact that has on a person’s sense of safety, of comfort, of belong
ingness. Well, numbers can affect the impact of stereotype threat on standardized test performance and on other aspects of academic performance. There are some very interesting studies that show that, in the case of stereotype threat on effects for women taking difficult math tests, are increased as you add men to the room. So the numbers, the cues who are present in a situation, the seemingly innocuous cues, that nonetheless signal that one’s identity may be under threat in that situation, or may be a source of trouble for one in that situation – those kinds of cues send one into a rumination about how one is doing, what are going to be the consequences of this, can I do this. All kinds of questions come up, and these distract one from a sort of unselfconscious engagement with intellectual work.

So I guess I should stop at this point. I do think that in the admissions process and beyond that for a long time we will need affirmative action. I see it as one of the few things – or at least the ability to consider race, to be race sensitive in our judgments and decisions, responsibly made judgments and decisions, but the value of being race sensitive is that it is one of the few things that gives us a some opportunity to have a checks and balance against criteria, selection criteria, experiences, in school when you’re there, that can compensate for the inherent biases that we inherit from our society and that come to visit us in these important academic situations. So, I’ll stop there.

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3) Jory Steele, Legal Aid Society Employment and Law Center:
Social Stigmas and Stereotype Threat

Kendall Thomas:
Thank you. We turn next to Jory Steele. Jory Steele works for the Legal Aid Society Employment and Law Center and she has been an active participant in the fields of race and gender employment discrimination law. I’m proud to say the Jory Steele graduated from the Columbia Law School in 1999, and she is active with the Committee of Concerned Black Law Graduates and was involved in that capacity as a coauthor of a brief filed by that group in the Grutter litigation. We’re pleased to see Jory Steele kinda back at Columbia Law School.

Jory Steele:
It’s great to see you. [Kendall Thomas] was one of my professors and I actually did research for him, so it’s great to be on a panel with him. So I wanted to talk a little about the brief that we filed, and how it relates to the stereotype threat that my father was talking about. I worked on a brief with a number of people, I hope some of them are in the audience: Wanda Stansbury, Chevar Jeffries, Vicky and Tasha and also my husband, Sydney Majalya. We wanted to file [the brief] from the perspective of Black alumni because we felt like Erika [Woods] that we had a perspective to offer on the Court on what it would mean for us not have had these opportunities. And what it means to have us involved in the legal field. We also wanted to start from the premise that we are qualified to be here, that we deserve to be admitted to these law schools, that we deserve to be in the fields that we’re in. So that was one of the things that helped shape what we talked about in our brief. We used the research of Claude Steele and others…it’s very weird to call you father Claude [laughter]…quite extensively. Because we felt that stereotype threat, the use of that theory is an incredibly powerful tool in explaining the test gap – to help show that indeed we are qualified, and to show that for example…I think that one of the problems is that the petitioner started from the premise that black students and white students take this test…and this test is totally equal, and we’re on an equal playing field. And that affirmative action gives us an unneeded boost. And what we wanted to show is that in fact the test has a very discriminatory impact on students of color, and that instead of starting on an equal playing field, and giving us a boost, what it [affirmative action] does is bring us up to the equal playing field, so that we can then go on and be admitted in the class.

One of the other things is the petitioners use the term preference, and you hear it all over the media. It’s sort of been taken over – that language of affirmative action as a preference. And I’ve hated that word ever since it started to be used in that capacity. Because it shifts the dialogue. It gives the Right, or the people who want to get rid of affirmative action a leg up and puts us on the defensive. And I think the use of stereotype threat can help us to attack that language, and help us reshape the dialogue, and take ownership over the dialogue. Again, because you can see that affirmative action, rather than being a preference, is a prophylactic against traditional selection criteria, which have preferences for white students built into them.The legal framework for the argument comes from Bakke itself. Professor Luke Harris of Vassar, I’m not sure he’s in the audience either, but he wrote a great article talking about how Bakke left room for just this sort of intervention. Justice Powell, in footnote 43 of Bakke says “racial classifications in admissions conceivably can serve another purpose, one which Petitioner does not articulate: fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures.” So, you can see that there is room here for us to say that, look, this is a prophylactic and not some sort of built-in preference.

One serious disadvantage to having effective litigation on this issue is that universities are the defendants, and have been the defendants in these cases, and if they admit that there’s a bias in their traditional selection criteria, they open themselves up to lawsuits from the left. In Bakke for example, the university conceded all arguments. They said that the traditional selection criteria had no benefit, or had no bias built into it. Michigan used my dad’s research to some extent, and the interveners in Michigan used it much more. And we also tried to build that into our amicus brief. And so it’s getting a little bit more play this time, and hopefully that will be successful in some way.

Another thing is that reverse discrimination – the idea of reverse discrimination – that Petitioners base their claims on is built on incorrect assumptions. As my dad was saying earlier, the Petitioner’s argument presumes that grades and standardized tests are these race-neutral categories, that their fair mechanisms for determining who is the most qualified, whatever qualified means, to get into these schools. And we’ve had a lot of discussion on this panel today calling into question the very term qualification – if people get into these schools and get these opportunities, many of them tend to succeed. So, what universities seem to need to be doing is trying to figure out how they can shape their classes to pursue what their interests are, and to fulfill their mission of the university, rather than determining the absolute most qualified person, because I don’t think you can.

So, for example, what the Petitioners have done is to say: well, you have a black student who gets a 1200 on the SAT and you have a white student who gets a 1200 on the SAT, the petitioners seem to think that that means exactly the same think, that the score for the black student and the white student mean exactly the same thing. And I think that stereotype threat, and some other research that I’m going to talk about, will show that in fact they mean very different things, and that you can’t use it that way as some kind of objective measure – which I think throws a lot of cold water onto the argument that Petitioners have made.

As my dad said earlier, stereotype threat affect people who care a lot about whatthey’re doing. So, black students who are highly identified with their academic performance are more likely to suffer from the effects of it. So, at a scho
ol like the university of Michigan or Columbia or Stanford since we’re here, where the students who are going to these schools tend to be students who have done a lot of preparation, that’s precisely the place where the test will have the most impact.

Also, something that you didn’t mention today, that the performance on these tests is likely to be exacerbated by middle class status. This I think causes a lot of problems for the idea that you can just have a class-based system of affirmative action. Because lots of people say that, if you’re just trying to address disadvantage, why don’t you just look at the class issues. And I think this [unintelligible] stereotype threat because it impacts middle class students at least as much if not more than working-class students – sort of throws that argument out. I think what it shows is that race itself and not just socioeconomic disadvantage, can trigger the underperformance on tandardized tests. And I think that’s a really critical point. The other thing that I think is really crucial to understand about stereotype threat is that, it is out there, it’s not in the test, it’s not about the questions on the test, although I think there are many problems with the questions on the test which I’m going to address next, but that it is out there in society, that the stereotype is out there in society. And so what you have to do to get rid of that imbalance in the performance is to get rid of that stereotype. And so that makes it a much harder argument, for the court just to say well, we can just fix the test up and then everything will be fine. That’s not the way it’s going to work, and so I think it’s very important to understand that. What it means is that, and I think Erika Woods spoke very eloquently about this, is that black students have an extra burden, when they’re in class, when they’re taking an exam like the SAT: if I don’t speak the most eloquently, if I don’t say the most articulate point, if I don’t do the best on this exam, are people going to think it’s because I’m black? And that is a huge burden to walk around with every day. White students, on the other hand, don’t have that burden, so there is an inherent preference for them because they can go into that exam and take it and they’re not thinking about eighteen other things that will distract them from their performance on that test.

In addition to stereotype threat, there is some really important other research that we tried to use in our brief, by J. Rosner who is the president of Princeton Review, and who was an expert witness for the interveners in the University of Michigan Law Suit. He said that, in his research, that methods of constructing standardized tests are problematic because they build in preferences for white students at the same time that they’re building in disadvantage for black students. By this I mean that test [makers] eliminate most questions on which blacks and women out perform whites and men, when they’re choosing what questions to put on an exam. Mr. Rosner, among many other different [researchers], analyzed statistics released by the Educational Testing Service who puts out the SAT, 580 SAT questions that ETS had released, that they had previously used in SAT exams given in New York state. Of those, 574 of those questions were questions on which white students would do better than black students. Only one of the 580 was a question on which black students would do better than white students. And five of them were race-neutral questions. I think this shows us two really important things. One is that, even if the preference for each individual question is only slightly helpful to white students, over 574, the cumulative effect of that is going to be huge. I think that one is a really important point. And secondly, they had five neutral questions, neutral questions, meaning they could have written 580 neutral questions on the exam and used those, but they didn’t. Instead, they didn’t, they used questions that benefited white students.

Perhaps, more shocking than this, which I think is already pretty shocking, is that because all the LSAT and SAT questions are pre-tested, that means that test-takers can predict the percentage of women, blacks, latinos, etc. who will chose the correct answer on an exam. That means, when they gave those 580 questions, they knew, before they gave it, that 574 of those questions would benefit white students. As Rosner said, in his expert report: “the actual task that law services perform, year in and year out, is accumulating a test full of individually chosen LSAT questions with foreseeable cumulative effects that, on average, whites will score higher than blacks, men will score higher than women, and wealthy students will score higher than poor students.

That means that when you’re looking at standardized tests, even excluding the list of factors that Claude Steele raised before you get to the standardized test, you have this huge double-whammy that black students, or other students of color face. You have stereotype threat that lowers the performance of students of color. And then the test itself is knowingly designed in a way that prefers white students and disadvantages black students. When you look at that, it’s so easy to see that a 1200 score for a Black student and a 1200 score for a white student have to have totally different meanings. There can’t be any way that means exactly the same thing when you take this research into account.

In addition to the test, there are other traditional selection criteria that other people have talked about as well, that operate as preferences for white students, children of financial [contributors], legacy… I know the University of Michigan gives extra points if you’re from the Upper Peninsula, which is a very white area. All of those things benefit whites. And, more importantly, I think, those benefits are based – they are purely preferences – they are based not on any inherent ability, they’re not giving a boost to somebody because of any kind of research that shows that the test is biased. They’re not trying to eliminate a bias already there. They are in fact building in a bias for white students.

So when you see all of these things, then you have to see that affirmative action is not so much a preference as it is a prophylactic.

Stereotype threat, and the research by people such as Jay Rosner indicate that affirmative action is necessary to counteract the discriminatory impact that the discriminatory impact that standardized and other traditional selection criteria have on black students. Or, to put it another way, affirmative action is necessary to counteract the preferences that are built into the traditional selection criteria, used by admissions offices at colleges and law schools around the country.

The Supreme Court, at least since Brown vs. Board of Education, has held that eradicating the effects of identifiable discrimination [is] an important governmental interest. Traditional selection criteria without the modification of affirmative action are identifiable discrimination. I think this is very important because the Supreme Court has long held that the effects of “societal discrimination” shouldn’t be taken into account when you’re evaluating whether or not there has been discrimination against somebody in a law suit. So if you can show that there’s identifiable discrimination by somebody, by some actor that you are assuming, then you can show that there’s as harm that can be remedied by your law suit. This, I think stereotype threat and this other work – Jay Rosner’s work – shows that there is in fact identifiable discrimination that needs to be addressed.

As Justice Powell note in Bakke, to the extent that race and ethnic background were considered to cure established inaccuracies in predicting academic performance, Bakke argued that there is no preference at all, and I think that’s what this work shows, that affirmative action is not at all a preference, but it is a

And that’s it.

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4) Ted Shaw, Associate Director, the NAACP Legal Defense and Educational Fund:
Grutter in Context and Remedial vs. Diversity-Based Justifications for Affirmative Action

Kendall Thomas:
We are in the presence of Ted Shaw who walked in the last few minutes. And I am going to put him on the spot only because I know he will rise to the occasion. And ask him to speak next from a first hand litigators perspective about the litigation in the Grutter case. And we’ll conclude with some remarks from Eric Foner. But what Ted Shaw can do for us is situate this litigation in the context of the broader backdrop of racial equality jurisprudence. We’re very pleased to have him with us. He’s the associate director counsel of the NAACP legal defense and education fund, which is the nation’s oldest legal organization fighting for equal rights under the law. A native of New York City, a graduate of Cardinal Spellman High School in the Bronx and a graduate of Wesleyan University as well as the Columbia University School of Law. He has a long and distinguished resume and we are delighted to have him here with us this afternoon. Welcome Ted Shaw.


Ted Shaw:
Thank you. I’m very clear that when people talk about a long resume it means you’re getting old. [laughter.] I apologize for coming in late to my fellow panelists and to you because some of what I say may be repetitive given that I missed the benefit of hearing the other speakers. I was in Boston, in Cambridge rather, at a meeting of the government’s commission, or the congressional commission that was established to commemorate the 5th anniversary of Brown vs. the Board of Education next year. I’m a commissioner in this enterprise, and so we had a meeting and I left there early to get down here. But I mention that because obviously one can look at Brown and the Michigan cases – potentially, it’s too early to tell – as some kind of book ends. At least, Michigan will be a mile post along the way. And it is ironic that it’s coming up on fifty years now and we’re in the Supreme Court on this particular issue. Even more irony exists if we were to reflect upon the fact that one of the building block cases for Michigan was Sweat vs. Painter, the university of Texas and the Texas case, Hopwood, was one of the building block cases for the CIR effort that led to where we are now in the Supreme court.

I want to thank you for the opportunity, Kim and others, for allowing me to participate on this panel. I’ve talked with Eric Foner on the phone, but I’ve never met him, and I have to tell you that Eric Foner’s work is just tremendous. And he is one of my heroes because of that. Reconstruction is a book that you should all read, and don’t read the abridged version [laughter], read the full version of that book. And I want to say hello also to professor Steele and Jory, Jory’s one of my former students and it’s good seeing you all even it’s only by video tape, or not video tape, I guess it’s live, that’s right it’s virtual.

Let me speak then on my role and the broader role of the Legal Defense Fund and other organizations in the Michigan litigation. Most people are not aware of it. And I want to situate those roles within the context of what I think is the broader marginalization of African Americans in particular and Latinos in this whole effort and struggle, which is facilitated not only by people like the CIR and other organizations and institutions, but also by the courts, including I think unfortunately the Supreme Court, but none of us should be surprised about that. I start these days with my usual shtick, which has to do with where I was 25 years ago right around this time. I was a Michigan… rather I was a Columbia Law student and I was on the national board of BALSA and we spent a lot of 1978 protesting the Bakke decision, and we were marching in the streets. I happened to go to the Supreme Court on the day that Michigan – rather, I keep saying Michigan – but Bakke came down. I’ve got Michigan on my brain and for good reasons. I was there when Bakke was announced, and I remember the opinions were read by the justices. There were multiple opinions as you know. And it was an extraordinary moment, not only because of subject matter, but also because almost all of the judges read from the bench on that day as I remember. Certainly, in addition to Powell, Marshall did in a very impassioned way, and Grennan did as I remember and I think some of the others did. And I remember leaving the Supreme Court that day and I had the opinions in hand and I and others who were around then will remember this. But I was devastated. Because Bakke was a loss. Not a win. I’ll say it again: Bakke was a loss. And here’s what we lost in Bakke. We lost the argument that the fourteenth amendment means anything specifically for African Americans. Anything in particular. Now, clearly the amendment applies to all of us, but the Fourteenth Amendment’s history is inconsistent with the Court’s jurisprudence because the Fourteenth Amendment was passed if, with anything, – I mean there were other purposes served – but, certainly it was passed with the purpose of bringing into full citizenship African Americans. And to eradicating the effects of Dred Scott and our then tradition of legalized discrimination in the form of what had been slavery and its various manifestations. So, Bakke was a loss. Professor Foner can talk about the Fourteenth Amendment and what it meant in very detailed ways. The Legal Defense Fund at that time had filed an Amicus Brief in which we made it very clear to the Court that the original purpose of the Fourteenth Amendment and the intent of its framers could not be said to be inconsistent in any way with race-conscious action, because the same Congress that enacted the Fourteenth Amendment, or passed the Fourteenth Amendment. Of course, it had to be ratified. But the same Congress was involved in many race-conscious ways in other actions, like the Friedman’s Bureau, like other actions like establishing hospitals and schools for African Americans. And so, that Congress was explicitly race-conscious. And so, if we took conservatives at their word, and if we looked at original intent, and we looked at the framers of the Fourteenth Amendment, it is completely inconsistent with a race-blind jurisprudence, which is being foisted upon us by folks like CIR and by conservative judges like those on the Fifth circuit in Hopwood and by some of the Justices on the Supreme Court. So that loss we have to remember in Bakke. It is inconsistent with both fact and history, and the Court never really addressed those arguments, just ignored them. And finally, with respect to the losses in Bakke, this whole notion of societal discrimination, that is, discrimination for which no one is responsible and for which there is no remedy was articulated in Bakke. In other words, the University of California at Davis could not attempt to address the effects of racial discrimination and inequality in our society, which resulted in very few African Americans and by extension Latinos – or on its own terms Latinos – having access to Medical School education. The Court basically started down the road of a jurisprudence which made it very difficult, and they’ve increasingly made it difficult for any governmental actors to engage in race-conscious deliberate attempts to do anything about racial inequality.

So, Justice Powell’s opinion was a weak compromise that snatched some victory from the jaws of defeat. And institutions seized upon that compromise and proceeded to pursue affirmative action on grounds of diversity. Not grounded in the interests of African American students or Latinos or people of color in access to higher education. Bu
t rather in the institution’s First Amendment interest, not the Fourteenth Amendment interest people of color, but the institution’s first amendment interest in academic freedom and diversity. So, to the extent that people of color or African Americans in particular had access to higher education in increased numbers, it has been derivative, it has been through the interests in white students in having them [students of color, etc.] there to give them the benefits of diversity. Now, I’ll take that. It’s better than nothing. And I think that the argument has integrity on its own terms. But the strongest place to rest affirmative action is on its own bottom, that is to say, in the interest of African Americans and other people of color in access to higher education, given what the history of discrimination against those groups has been in this country. And given how relatively recent it has been that we have begun to address that history. And we could talk more about that in great detail, but I don’t think I need to, or should need to.

So, Bakke was a loss, and we’re defending it now; that’s an indication of how far to the right we’ve been pushed in the last twenty five years.

Let me then tell you about the role that we played in these two cases. I left the Legal Defense Fund in 1990, after being at the fund for a number of years, to go teach Law School, completely coincidentally and ironically, at the University of Michigan. And while I was on the faculty, I was appointed by then Dean Bollinger who hired me, to serve on a faculty committee that drafted the policy that is now under attack. And my role on that committee as I saw it as a civil rights litigator, which was different from how law faculty often see themselves, was to makes sure that the admissions process there was consistent with Bakke and was as consistent as possible, because it was very clear even then that the assault was under way and that it was coming. I hope that you all have – you probably have not heard from him yet, but you should know who Lee Cokorinos is who’s sitting up here, and I think – you’re going to speak tomorrow is that right? – oh at five, ok. Because he has laid out how that assault has been mounted. Here’s what I’m trying to say to you with respect to the law school case, with respect to Grutter. The Legal Defense Fund did not intervene in Grutter because I, obviously, was a witness and you don’t want to be a witness and a lawyer in the same case. And the interveners in Grutter are connected with BAMM, Miranda Masse, you all probably are familiar with who she is, and they put forward a defense of affirmative action on remedial grounds in the law school case. We did intervene in Gratz, which was the first case to be filed and, as you know, both cases had to go to the sixth circuit in order for us to be able to participate respectively in these cases. The sixth circuit reversed and we went back down and put in additional evidence. The record that the University of Michigan has made under John Payton’s leadership as lead council in those cases is unparalleled in any of these affirmative action challenges. It is an excellent record. Professor Steele, Professor Foner, both of them were experts. There are a whole range of experts who testified in those two cases and built a record that is as strong as one could get on diversity. But there’s nothing from the University with respect to remediation. And affirmative action stands on two legs. Independently. On either one. Remedial justifications and, the alternative, on diversity. Remedial justifications are obviously easier to come by, or should be easier to come by, in formally de jure institutions or states – like Georgia, like Texas – both of which have had anti-affirmative action litigation. I don’t have time to go into the details of all of those arguments. I can tell you that even in the face of de jure histories of segregation and discrimination, even where it’s admitted by the state, as it was in the challenge to affirmative action in the form of scholarships in Povereski vs. Kerwin, scholarships at the University of Maryland, even where the state falls on its sword, these conservative, Reaganized and Bushwhacked courts have been unwilling to find a remedial justification for affirmative action. And, as I get older, I feel less compelled to bite my tongue. It is intellectually dishonest, it is factually inaccurate, it is historically untrue, and it shameful, that remedial justifications [for affirmative action] exist only in theory, but not in fact, these days. So even when the defendants have acknowledged, as in Pavereski, that past discrimination has an effect on present conditions that would justify affirmative action and they rely on it, Courts like the 4th circuit haven’t been willing to find that.

Now, in the Michigan case, of course, we don’t have a de jure institution. But I can tell you that the University of Michigan didn’t come into existence in 1964, 1968. It was founded in 1817. It has a history of discrimination. I know the note you’re about to write me I suspect and I’ll try to finish up. It has a history of discrimination, both at the law school, and at the undergraduate level. I won’t go into that history, you can read our briefs about it. Go to our website, and read the brief that we filed in Gratz, as a party, in the Supreme Court. And read the brief that we filed as an Amicus in the Law School case. The Amicus brief gave us an opportunity to say things we couldn’t say when we were fact-bound as a party, and so we took on the Court’s jurisprudence with respect to race from Bakke on to now, and told them how they were fouling up the law in a way which is inconsistent with facts, history, etc. In any event, we put in that history of discrimination. I’ll mention for example, in the law school case, when I taught at the law school, a lot of the research in the summer that we were able to do as faculty members was funded by Cook, somebody named Cook, Cook Funds, and he was one of the biggest benefactors of the Law School, also the quad there in which the dormitories exist, is the Cook Quadrangle. And the Cook Quadrangle was limited explicitly to whites when it was established. I’m saying that, there’s history. And these attacks on affirmative action are ahistorical, and they are decontextualized, so that the Supreme Court’s consideration of this case, but for the evidence we put into the record, looks as if we began to write on a clean slate, and to give advantages to African Americans and Latinos, to people of color. And it is only in that ahistorical and decontextualized context that the opponents of affirmative action can dare to say that affirmative action somehow can be equated with the history of de jure segregation and discrimination and slavery visited upon African Americans, Latinos, people of color, and manifested in various forms. Again, dishonest.

Let me just close by saying this. There’s so much more I could say. But we built the record that makes this case different from Bakke. CIR wanted to ignore it. Many of the judges on the sixth circuit, but not all of them, wanted to ignore it. The Supreme Court has denied us the opportunity to participate in oral arguments even though we are parties. On Tuesday, the white plaintiffs will be heard. The University will be heard. The government, which is not even a party, will be heard. Black and Latino students who have the most at stake – and let me just pause and say that, whatever happens, the University will go on. One way or another. White students will continue to apply, some of them will get in some of them won’t. And I doubt, well not I doubt, I can tell you that Jennifer Gratz, Barbara Grutter, Patrick Hammicher, their denials have really nothing to do with affirmative action. The best argument they can make is that were they black or latino they would have increased chances of getting in. But they certainly can’t argue with any integrity that they were denied admissions because they were white. So, those fol
ks will be heard. We, who have the most at stake will not be heard. It is part of the marginalization of African Americans and Latinos in these cases. Where institutions that are predominantly white are sued by white folks and the courts decide these cases in an ahistorical, decontextualized way. And, it is more than a problem. Nonetheless, we have built the best record that can be made. The Court will either deal with it or ignore it. But I stand, or sit right now, very much at peace with the role that we have played. And I close by telling you that whatever happens in these two cases, this struggle will not be over. This is just one stage. If you understand our history, the denial about race and racism has been one of the strongest forces, and perhaps the strongest impetus in our society throughout our history. From the time that there was a complete ban or censorship on talking about slavery in congress during the 1840s, through the time that this country denied the historical meaning of the Fourteenth Amenedment, and equal protection clause, and the very meaning of the civil war, in the post-reconstruction era, through this time, in which race is being denied its significance in this assault on affirmative action. The assault on affirmative action at bottom is an attempt to make all conscious and deliberate attempts to do something about continued racial inequality, illegal. I framed that very carefully, I want you to reflect upon that and think about that. It is nothing less than that. And it is a shameful assault by those who are either wolves in sheep’s clothing, or wolves in wolves clothing [laughter] who have hijacked that language of the civil rights movement, used color-blindness as a Trojan horse, and are pursuing an old, racist agenda. And we need to say it and call them on it. People can differ about affirmative action in good faith, some people oppose it in good faith. But these people who are leading this assault are not operating in good faith. And it’s time to take off the gloves and say who they are. I don’t believe there’s any going back, even if the Court should go the wrong way in the Michigan cases. There’s a lot more to be said about this. But I’ve already taken more than my fair share of time. And I thank you all for listening to me.

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5) Eric Foner, Professor, Columbia University:
Grutter in Historical Context

Kendall Thomas:
Our next and final panelist is Eric Foner, who is Dewitt-Clinton professor of history here at Columbia University. He is without a shadow of a doubt one of the nation’s, indeed one of the world’s, great specialists in the history of the civil war, reconstruction, slavery, and nineteenth century America. Among his many publications is Reconstruction, America’s Unfinished Revolution and, most recently, Who Owns History?: Rethinking the Past in a Changing World.Professor Foner served in 2000 as President of the American Historical Association. Veering superbly, but veering nonetheless from his brief, our litigator, Ted Shaw, has show us why we ought to attend to the corrective power of historical contextualization. And thus it is fitting, certainly, that we should conclude part of our discussion with a few words from Eric Foner, please welcome Eric Foner.

Eric Foner: Well, thank you Kendall, and pleasure to be here at the Law School. As you know, I’m not a lawyer. I’m not a law professor. I sometimes play one in court or at the law school here when I’m invited over. I do want to talk a little bit about history, and the uses of history. Mr. Shaw kind of anticipated some of what I wanted to say, but that’s fine, the more these things are reiterated the better.

I did want to actually add something to the very fascinating comments of Claude Steele. I’m not a psychologist or a student of psychology the way he is, and I don’t know anything about the LSATs, but I can tell you, as someone who goes over admissions applications to graduate schools that the GRE is a totally useless examination. I don’t understand why people spend money to take it, and I don’t understand why the university requires it. It does nothing – this is not a statistical analysis, it’s just long experience – it in no way tests what is required to be a good graduate student in history. I don’t even look at the GRE scores when I look at an application. That may or may not have anything to do with SATs, LSATs, but that’s my opinion of a lot of these standardized

I was an expert witness in one of the two Michigan cases, the law school one. I wrote a, what do they even call it, I don’t know, there’s some legal term for those documents you throw in there [unidentified male: expert witness report] A report, that’s right, it was a report. [laughter]. I was asked to write a history of race in America, which I found a somewhat daunting request [laughter] in about fifty or sixty pages. I’ve actually spoken here at the law school at another occasion about my experience as an expert witness, and some slight discomfort with the role I played. Not that I said anything that I didn’t think was true, but, as Kendall said when he opened this discussion a couple hours ago, there’s a difference between the situation when lawyers shape a discussion, and when historians shape a discussion. The lawyers that shaped the discussion in that case about the educational value of diversity, which is a perfectly legitimate thing to talk about, but to me that is one fairly small part of the whole issue of affirmative action and the historical grounding of affirmative action in American society. They have their legal reasons for doing that. I was not in a position to challenge that. I wrote a report that didn’t say anything that was untrue, but I guess that what I’m complaining about was that I had to leave out a lot of things that I think are absolutely essential if one is going to think about the history of race in America because they weren’t relevant to the argument that the University of Michigan’s lawyers were making and maybe the court wouldn’t have been interested in them anyway. In other words, if I were chosing, if I were writing a book about this, I would not choose to focus on the sort of psychological impact of racism in America, which is really what they were getting at: the fact that because of the distinct historical experiences of whites and non-whites, which is certainly true, that different groups of Americans, kind of have different attitudes towards things, towards the police, let us say, or the legal system, or toward many things, and that that therefore creates a better educational environment when you put those people together with different presuppositions. All of that is true, but to me that is not what the history of race is all about in this country: the fact that people have different psychological reactions to

There’s an economics of racism. There’s a politics of racism. There’s a political economy – there’s all sorts of ways that racism is embedded in our society – to me in far profounder ways than that [resulting in different perspectives, etc.] actually. But nonetheless, that’s what we had to talk about because that’s how the case was structured.

The decision in the law school case didn’t talk about history at all, as far as I can tell. Although it did come up a lot when I went and testified. The judge seemed to find it very interesting to have a professor there he could ask questions to, and it was like going to an oral exam for a couple of hours. [laughter] And he peppered me with all kinds of questions about the fourteenth amendment, which I felt obligated to try to answer, although it didn’t seem to affect his decision very much.

I don’t believe in the jurisprudence of original intent, but I do believe in history, and I do b
elieve, as was said, that you have to understand all these issues in a historical context. And our Supreme Court has been abysmal in thinking about race in historical context. In my most recent book, which was mentioned, Who Owns History there’s an essay of mine in there, which was written about ten years ago so it’s not up to date, about the Supreme Court and race in the late eighties, some of the 1988, 89, 90 decisions. And not about the legal jurisprudence justifications, but the sort of assumptions about the history of race in America, that come out in Supreme Court decisions. And they are completely misguided, actually, as history. I’m not talking about them as law. The majority of the Supreme Court just does not understand American History. This is an unfortunate thing. [laugher] Now, I should probably write another one on the last ten years of their decisions. They talk about the Fourteenth Amendment a lot. As we just heard [from Ted Shaw] they have no idea about the historical context in which the Fourteenth Amendment was written, was drafted, was ratified, was debated. They don’t understand that the issue of affirmative action was alive in American Society at the time of Reconstruction. It wasn’t called affirmative action, that phrase didn’t exist, but it existed as an issue. Sometimes it was called class legislation, which meant not class in terms of socioeconomic class, but legislation that meant to assist or uplift one group, class meaning a group, legislation meaning to assist a group of people: African Americans or others. And whether that was legitimate for the government to single out one group for special attention. And there’s no question in my mind that the people who wrote the fourteenth amendment believed it was perfectly legitimate to single out the victims of slavery for special assistance from the federal government. They were living in a context in which they were thinking about the legacy of slavery, they were thinking about the legacy of discrimination, they were thinking about the consequences of emancipation in American society, they were thinking about the service of Black soldiers in the Union army in the Civil War. As I’m sure you all know, but many people don’t, they wrote the Civil Rights Act of 1866, one of the great pieces of legislation in American history, before the Fourteenth Amendment was part of the constitution. It was justified on the basis of the Thirteenth Amendment. It was part of enforcing the abolition of slavery. Because they thought the abolition of slavery meant more than just striking the shackles off of a person, or saying they could no longer be bought and sold. They were thinking “what does it mean for a person to move from slave to free in American society in the nineteenth century. And the Civil Rights Act was an attempt to deal with that. It had nothing to do with the language of the Fourteenth Amendment. They often act as if it came after the Fourteenth Amendment. It didn’t. They enacted the Friedman’s Bureau as we heard and other things. They were putting into practice a sort of a kind of jurisprudence which originated really with the abolitionist movement, before the Civil War, which created a kind of an alternative constitutionalism. The constitutionalism of the pre-Civil-War period was a pro-slavery constitutionalism. The abolitionist movement created an alternative vision of what the constitution ought to be. And that was embraced by the majority of the republican party after reconstruction, after the Civil War. You can’t understand these things without going back to abolitionism, and to all those debates about what it is to be a citizen in America, and who should be a citizen, and what this country is all about.

And the thing is that, what is so modern – some of the comments we just heard from Mr. Shaw, I agree completely about the retreat that’s been going on. You know, but go read the veto messages of Andrew Johnson. There’s nothing that Clarence Thomas and Scalia and these guys say that Andrew Johnson didn’t anticipate in his vetoes of the Civil Rights Bill, and the Friedman’s Bureau Bill. He said absolutely: these measures discriminate against white people. All the benefit is going to the Black, none to the White. This is a violation – he said, there is nothing in our history like this. He’s right about that [laughter]. There was nothing in our history like this up until that point. And he was answered by Congress. And they said, well yeah ok benefits are going to Blacks, but you know, Blacks have been slaves for two-hundred and fifty years. That’s why they are being singled out now for benefits, and the white man is not getting benefits. Because white people have not been slaves for two hundred and fifty years. So the Reconstruction debates were far more explicit about the history that’s being addressed in this kind of legislation than we are able as we just heard to talk about today, because of the way the sort of jurisprudence has narrowed the discussion.

I don’t want to go too far into the next panel, but I do want to just say that the current invocation of the Fourteenth Amendment and the Equal Protection Clause to try to invalidate affirmative action is a total travesty of what the Fourteenth Amendment was intended to accomplish by the people who wrote it, just as the invocation of Martin Luther King and his speech at the Lincoln Memorial about how “I want my children to be judged by content of their character and not the color of their skin” is a total travesty of the – I mean taking that sentence out of context makes a total travesty of the views of Martin Luther King Jr. You would not know from reading these right wing attacks on affirmative action which invoke King that King was a powerful defender of affirmative action. Even when King was writing, though, that term still didn’t exist. He used the far more explosive term “special privilege.” King wrote that Black’s deserve special privileges, because of the centuries of special discrimination that they have suffered in this country.

It’s a terrible thing in my mind, for understanding history, that Martin Luther King Jr. is forever frozen in our minds on the steps of the Lincoln Memorial in 1963. You know, every Martin Luther King birthday comes around in January, we see that speech. I think they ought to retire that speech for ten years. And let’s here the King of 1965 or ’66, where’s he’s talking about economic inequality in American life, and the need to address that. Or the King of ’67, when he gave his speech against the Vietnam war in Riverside Church here, when he became the most prominent person in American society to attack the Vietnam War at the time that he did it, and was condemned by the New York Times and many other publications for so doing.

I will just conclude with another point of history, which again dovetails with what we just heard. Affirmative action was never meant to be the primary weapon for attacking racial inequality in America. Affirmative action is a minor weapon. It has been elevated to being a major weapon because all the other efforts that were supposed to be made weren’t made. If you go back to read the agenda of the civil rights movement, affirmative action is not a major part of that agenda. They wanted jobs, you know, they wanted to break down segregation in housing, they wanted to upgrade education, they wanted vigorous enforcement of anti-discrimination laws. All of those things are gone, they’re gone, they’re not happening. And that’s why affirmative action – the weight, the burden on affirmative action is far more than affirmative action was meant to bear, and ever can bear. Affirmative action cannot integrate this society. And it cannot end the tremendous gap in wealth or in life expectancy or in other criteria between non-whites and whites, which still persists. It can’t end the segregation of our school systems all over the country, because it can’t create housing integration, which is what we lack in this country. But affirmative action is all we ha
ve left, so it should be defended. Those who defend it ought to realize that, as we heard, it is not a panesia, it is not going to create a just society. But it is the only weapon that remains, very tenuously, but does remain, for trying to deal with the real legacy of the history of this country.

Thank you.

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B) Panel #2: Reconstructing the Rhetoric of Affirmative Action (Roundtable)
Thursday, March 27, 2003

Kimberlé Crenshaw, AAPF Co-Founder/Director and Professor of Law at Columbia and UCLA:
Welcome to this roundtable on Reconstructing the Rhetoric of Affirmative Action. This roundtable is part of a two-day affirmative action event that is designed to create and broaden the discussion around affirmative action with the specific intent to try to bring more information into the debate and to respond to some of the misrepresentations of affirmative action that have lead to so much of the controversy around these important programs.

This panel is a follow-up to a panel that we just had. That panel focused on the actual case that the Supreme Court is going to be hearing this coming Tuesday, April 1st. In that panel we heard from those people who were participants either as refrieders [?], as expert witnesses, or as actual counsel for some of the student interveners. This is a follow-up to that in that many of the themes that were initially set forth in that panel actually reflect deeper research and deeper thinking around the terms of affirmative action. So we can see that this is an opportunity to actually explore these ideas in more details, to talk about their implications, and most importantly, to figure out if there are ways to take this debate into the public discourse. Can we figure out ways, for a example, of packaging the discussion around stereotype threat to a broader audience, so that we can more or less put aside some of the assumptions that test scores constitute objective notions of merit. What are the ways in which we can travel these ideas, make them go from the academy to the public arena.

We are delighted to have a distinguished panel of people. Many come from far away and some from downtown — sometimes even that seems far away — to help us in this conversation. We’re framing this as a conversation so we are going to more or less try to build on each other’s comments toward a common goal of figuring out how we can make a more substantive and effective intervention in the debate on affirmative action.

I will just ask some questions and each of our roundtable participants will tell you a little bit more about who they are and the work they do as embedded in their answers to the particular question. I will dispense with long introductions from everyone in hopes that they will tell you about who they are as they answer the questions.

My first question goes to Janine Jackson who is the executive director of fairness and accuracy in reporting. We’d like to start this question off with Janine because much of the impetus behind this roundtable and tomorrow’s strategy session actually came from research that Janine Jackson did for Americans for a Fair Chance. We all know that in order to reframe affirmative action, we have to understand a little bit about how affirmative action is now being framed in the media. I think a lot of us know a little bit about the need to reground affirmative action. We know a little about the need to attack some of the obvious biases in the rhetoric of those attacking affirmative action. But Janine, you looked at purportedly objective coverage of affirmative action. Based on your research, what can you tell us about how the purportedly objective coverage distorts the terms of the debate surrounding affirmative action?

Janine Jackson, Program Director, Fairness and Accuracy in Reporting:
Let me say first of all, I’m not the executive director of Fair, but the program director of Fair. I think my colleagues would want me to clear that up before returning to the office. I did look at news coverage, mainstream US news media, for the first 6 months of coverage in about 15 major US outlines for the first 6 months of 1998, and I did find some of the things you might expect like news reporters using the terms preferences and affirmative action interchangeably. I did find that the articles overwhelmingly focused on African Americans without mentioning other ethnic groups or women. But I would say that the main findings that I came away with were two.

First of all, I found that it wasn’t so much that mainstream news reporters weren’t reporting affirmative action well. It was that they weren’t really reporting it at all. Affirmative action was covered as an issue, a political football, or a mine field, but it was essentially not covered as a concrete set of actual policies and programs with a traceable history and with demonstrable effects. So that was true in the sense that one outlet, US News and World Report, for example, ran more opinion columns on affirmative action than actual news reporting. But it was also true in the larger sense in that the articles in the main had a very static framing of pro and con. Affirmative action was a matter of claims and counter-claims. Proponents say this, opponents say that. Very few reporters did any independent investigation to take it beyond this kind of “they say-we say” argument.

Another thing that I found very important was that mainstream news reporters are covering — at least at that time, and I don’t believe it’s changed — affirmative action absent any context of discrimination, past or present. In other words, of the 314 articles that I looked at, only 15% made any reference at all to any uneven playing field, to any discrimination that had ever existed or existed today. So in other words, you have a conversation in the mainstream press about remedies to discrimination, whether they’re good, whether they’re bad, who’s for them, who’s against them, but the missing pieces — what are they a response to? We weren’t asking a tremendous amount from reporters and in fact, some reporters can do it.

There were exceptions. Of the 314 articles that I looked at, exactly 11 were actually primarily addressing discrimination — affirmative action in a context of discrimination. Five of those 11 were in one paper, the Seattle Times and they were all by a single reporter. It just shows that it could be done, but simply wasn’t being done. Rather than saying pro and con, the Seattle Times series had a framing of equality on the job, are we there yet? Which you can just see is a very different way of framing the same set of issues, rather than affirmative action, pro or con.

Kimberlé Crenshaw:
Much of the current debate is premised upon distortions and misinformation about affirmative action, how these policies work. Some of the posters tell us that this distortion is starting to show some effect, that increasing numbers of Americans who at one point approved of affirmative action are starting to disapprove of affirmative action, at least that’s what the pollsters tell us. Having researched the right wing’s campaign, tell us how they did it. Tell us something about how this campaign has been waged. When did it start? How did they do it? What’s the ideology? What are their resources? Who are they?

Lee Cokorinos, The Institute for Democracy Studies:
The first thing we need to bear in mind, again going back to the previous panel, is that there’s a very long history in the discussion of these issues that we’re dealing with. There’s a long history to opposition and support of whether as, Eric Farmer said, you call it affirmative action or you don’t. Whether you talk about it in the context of the 14th
Amendment or moving forward through Brown v. Ford or the Houston plan or the ‘60s and the battles over race, over equal opportunity, Nixon’s Philadelphia Plan for some of the more historically oriented, and then the rise of think tanks and the large foundations that are able to put the capacities together to shape public opinion and to draw on the traditions of the discourse, but also to reframe particular expert languages, in terms of social science language, in terms of spinning. And then, the latest stage, to begin to use the language of liberation in the civil rights movement itself against it, to thereby problemitize and confuse the whole issue. Going on, to attack the gains that have been made which are mixed at best and begin to try to reverse those legally.

There’s an institutional history to all of that which is what we study at these inter-democracy studies. These things either the gains in the civil rights movement, the 64 civil rights act, the Brown v. Ford going back to 1866, did not come about because of either accurate or distorted vocabularies. Those vocabularies were contextualized. So that history needs to be understood. And in the same way that history is joined at the hip, as the dean said, with law, politics is as well. There’s a political context to these Michigan cases as well.

I can tell you who they are and also a little bit about what they say. Since we’re talking about language, I think the first thing is the right speaks a lot of different languages, depending on who they’re speaking to. They have their own private language when they’re speaking to themselves; they have a language that they speak in the courtroom of expert testimony. It’s not necessarily a mechanical or reductive or even distorting one. For instance, if you look at some of the … briefs that were submitted, the issue of how social science categories can be problematized, that critical sociology began to develop over the past 30 years, are now being used by the right to actually say, Well, the expert testimony that people like Ted Shaw and so on are bringing in, let’s open up the categories that they use. Some of these same people, for instance, the National Association of Scholars who also filed a brief, ten years ago were defending a very narrow canon in the canon debates, to say, here’s the truth. It’s been there for a thousand years and now they’re in a sense making an opposite argument.

To specifically answer your question, there are about 4 or 5 organizations that were set up beginning in the mid-‘80s with conservative foundation money within the context of a wider resurgence of the right, the organized right, to target the gains of the civil rights movement and the feminist movement in particular. One of the things they did was to borrow that language of the civil rights movement. So you have the organization that’s bringing the case, the Center for Individual Rights, using the language of individual rights, which has legal resonance as well as the broader political resonance, exploiting that. ….. Center for Equal Opportunity which again takes the concept of reverse discrimination and adopts the pose of massive discrimination against whites. Institute for Justice, which is the libertarian law firm run by Clint Bollick, who is in many ways the intellectual leader of this movement. And the Civil Rights Practice Group of the Federalists. Civil Rights becomes anti-civil rights.

The reason for that is a lot of the culture wars in the ‘60s did seep into American culture in a very fundamental way. It even seeped down to a certain extent. They understood that with a minority political position, they had to address that somehow or not address it or deflect it. So the names were chosen with care. Even the political engagement that they took on in the ‘90s reflected that as well.

But there is still a very coherent political network that has been driving this, that Ted Shaw mentioned last time, that is very different in terms of its agenda, from what most people think about affirmative action. You can’t get at that by polling. So the media will not cover this as an assault on diversity the way we describe it in the book, but as, well what will people think about this?

Kimberlé Crenshaw:
Luke Harris, if we move from what Janine Jackson just told us and what Lee just told us, we’ve got a two-pronged problem. We have an assault going on that is organized around rhetoric of the civil rights movement, an appropriation. And we’ve got media reporting that is so-called objective but distances affirmative action from any ongoing patterns of institutional discrimination. So what if we did attempt to insist, for example, that reporting about affirmative action be linked to ongoing patterns of discrimination exclusion. Our pollsters tell us, our research tells us, that people don’t respond to this notion of institutional patterns of discrimination. Either they don’t know what it is or whatever it is, they think it happened a long time ago and it’s not happening now. Help us understand first of all what is institutional discrimination, and how does elevating it help us reframe affirmative action?

Luke Harris:
I’d like to begin by saying that as quiet as it’s kept from the general public in the overwhelming majority of the cases, affirmative action does not afford preferences to its beneficiaries. What we can gain from historically contextualizing affirmative action programs and talking about the ways in which they are related to problems of institutional discrimination is to really capture for the American public the reality around which these programs are based. There is so much talk about diversity as the principal rationale for affirmative action, about compensation and things that have happened in the past, but too little talk about the continuing problems of institutional discrimination. The heart of the issue here are really questions of equal opportunity in contemporary America or the beneficiaries of affirmative action.

What affirmative action should be about at its core is a need to rethink and re-envision the traditional forms of meritocracy in many spheres of American life, because they discriminate against a wide range of beneficiaries of affirmative action. What we’re talking about are conceptions of meritocracy that were developed during the year of American apartheid. Conceptions of meritocracy, conceptions of how our institutions should work in different spheres of American life, continue into the present. Not surprisingly, these conceptions don’t work. Here’s the point, the real deal: dismantling visions of meritocracy and dismantling visions of the ways in which our institutions have been structured to preference men and to preference whites is not giving anyone a leg up, not giving anyone an edge. It’s about promoting equality and dismantling a broad range of systemic institutional forms of discrimination across the country.

Whether you’re talking about the way racism is embedded in the traditional admissions criteria in the sense that was talked about this morning, or whether or not you’re talking about routing out the forms of institutional sexism that exists in places like the air force academy, we’d have to re-imagine, rethink, reconceptualize how we want our institutions to work in the post-apartheid era.

How do we do that? We have to shift the terms of the debate, about what it means to talk about things like equality, reverse discrimination, what’s a preference, what’s a quota. How is it that most Americans seem to know what a preference is, what a quota is automatically when it comes to this debate about affirmative action. Affirmative action takes place in so many different spheres of American life, so many different domains, so many different institutional settings. How is it set in people’
s minds that they know reverse discrimination when they see it?

There’s a conception of equality that’s in place. It’s a conception of equality that goes back to Aristotle, that suggests that you treat similarly situated people the same. That makes sense in certain types of political arenas. My mother was a fundamental Baptist and she used to talk about the kingdom of heaven. I think in the kingdom of heaven, it might make sense to assume that people are similarly situated all across the board and to think that you can know what equality is simply by treating everyone the same. But we’re dealing with social issues and the allocation of resources on the planet earth. And a situation where we know that for all kinds of reasons that have been institutionalized and structured into our society, people are dissimilarly situated for all kinds of reasons that have nothing to do with themselves.

So how do you talk about questions of equality in that sense? I argue simply this: I think that we have to move away from what I call the simple arithmetic of equality. Assuming similarity of situatedness in a social historical context but we know that can’t be the truth. I think we need to move to what I call quantum physics of equality, which means that we have to rethink, re-imagine, reconceptualize how we approach the routine practices that exist in our institutions in every sphere of American life, in every institutional setting. That’s a much more difficult ordeal, a more difficult task. You can’t make assumptions about what equality means, about what reverse discrimination means simply by assuming that if you treat people the same, you’re treating them equally. We need to change the terms of the debate to reflect the ways in which structured systemic problems of institutional discrimination exist in all spheres of contemporary American life.

Kimberlé Crenshaw:
I’m going to ask you a follow-up. I’m going to take the line of Denzel Washington in Philadelphia. Explain it to me like I’m a 4-year old. We’re all about equality and we all understand that that’s important. I’m the person watching Fox TV, that 15% that’s undecided, the 15% that everybody is trying to win over to their side. I hear this stuff about discrimination, institutional exclusion and I literally don’t know what you’re talking about. I know that discrimination used to happen 25 years ago, but that’s all in the past. We’ll be better off if we leave it in the past. Convince me, show me, explain to me, where is institutional discrimination happening now?

Luke Harris:
What we have to recognize, what we need to do in terms of the public education, is begin to move from one institution to the next, to talk about what it means to rethink what discrimination means in different settings. For example, the conversation we had this morning that speaks to the conception of meritocracy, that a lot of Americans believe it, a lot of people of color believe it, has to be contested. People have to begin to see how a lot of the norms that exist in our institutions were developed at a point when those institutions were not open at all, to try and clear out the problems of people, who were marginalized in American society. So the question becomes how do you sort out merit in institutions of higher education in the post-apartheid era. How do we have to rethink these criteria that were developed at one moment of American history in a new moment of American history where we’re supposed to be trying to develop notions of equality that actually capture the experiences of all of us.

Kimberlé Crenshaw:
Devon Carbado is the director of the critical race studies program and a colleague at UCLA Law School. As we heard from the earlier panel, there are critics of the Bocky decision. Ted Shaw, I think quite rightly, pointed out that actually Bocky was a loss rather than a gain. For many people the very very slender reed for affirmative action, that being diversity, is one that really has hindered efforts to think about these programs in the broader terms that Luke was talking about, mainly to acknowledge its value to underrepresented people, to contest notions that our institutions are benign. We need to bring more people of a different race into them. All that is seen as a legacy of diversity. So my question for you is, given all of these compelling critiques, is there any reason to try to rehabilitate diversity?

Devon Carbado, Professor, UCLA School of Law:
I think it’s hard not to admit that diversity is perhaps the most conservative or traditional way to defend affirmative action. I think that’s indeed the case. The question we have to ask ourselves on some level is to what extent is it possible to give the diversity rationale a progressive edge. I don’t think that we should cede the diversity defense. As we all know, diversity has a certain degree of political, doctrinal, and normative appeals. It doesn’t really make sense to jettison it even if we think that presently it really strictures the terms upon which affirmative action is talked about publicly and certainly litigated.

So how then might we be able to rehabilitate diversity as you say? I don’t think there’s any easy way to do it. But I think we might begin by articulating a simple definition and then thinking through whether or not we can identify specific functions. We could start, for example, with the idea that diversity reflects the notion that there is a relationship between race and experience on the one hand and knowledge and practices on the other. That might be a starting place.

Then the question would be what specific functions can we attribute to diversity based on that simple definition? I think there are two large sets of functions that we can identify. I’ll just mention one set, a set that has to do with citizenship. I want to link diversity to citizenship because I think it helps them to move diversity from that context within which blacks and other people of color function as objects of difference to a place where diversity is kind of linked, at least marginally, to concerns about remediation.

There are three citizenship ways in which one can conceive of diversity. One argument would be to recognize that universities are not just places where we learn in a narrow academic sense. Universities are also places of socialization or Americanization, which is to say part of how we learn to become American is by the kind of interactions that we have in school. To put this more directly, to the extent that students practice a kind of racial isolationism in the context of the universities, they’re likely to practice that in American life as well, since the nexus between who we are as students in terms of race and who we are as citizens in terms of race as well. Forging that connection I think becomes one way of linking diversity to a citizenship value.

Another way of linking diversity to a citizenship value is to suggest that diversity actually promotes color blindness. Now this is not an argument that I’m really eager to make, particularly given my own views on the way in which color blindness plays itself out politically and in the context of cases. But I do think that there’s an argument that can be made that diversity actually promotes the kind of color blindness that conservatives at least give lip service to. Erica mentioned earlier on that in her brief, they included testimonials of various law students about the kinds of experiences they have in an institutional context within which there is no diversity.

I’ll just give you some indication of at least one testimonial from a black male student at ……, and again this directly from the brief that Erica and others wrote and I really urge you to take a look at this brief which is really quite excellent and does break new intellectual ground. The student writes, this is James Boyd, “I entered Both Hall in the year 2000 as one of seven black male students; however, I was the on
ly black male. Prior to entering law school I never defined myself by my gender in conjunction with my race. [We can sort of wonder about that but let’s just move on.] As a practical matter, I could not deny the reality of the situation. I was the only one. While there were other people within my class who shared my race, there was not one person who could assist me providing my peers with first hand insight into the black male perspective. This problem was compounded by the fact that I was the only black male student in my first year classes. Thus, I was forced into the dual obligation of representing the perspective of the entire race within my classes while attempting to represent my own unique identity within the first year class. It is still open to question as to how that impacted me, however, it is clear that my classmates were cheated because they were denied a diversity of views from black people who occupied varied socioeconomic identities but providing a range of views and experiences there is a higher probability that the black perspective is going to be expressed within the law school context.”

What is interesting about this particular representation, it suggests that this student was kind of in a racial double bind. On the one hand, he’s expected to “represent the race,” that is to say, articulate the black perspective. On the other hand, he’s expected to “fit in,” which presumably means dis-identifying with his race. I think these kinds of experiences suggest to us that the absence of racial diversity actually promotes racial identification, racial consciousness, racial awareness. That is to say, one’s racial identity becomes actually more salient to the extent that you are one of few. So one can argue, then, that conservatives should be happy with racial diversity because it promotes a kind of individualism and it creates an institutional context within which one’s racial identity is not the object of a kind of voyeurism, that one’s racial identity is not rendered especially unique, and that one is free then to express oneself in terms that are not necessarily overly determined by race.

Another way in which one can make an argument linking racial diversity to democracy is to suggest that it’s consistent with norms of color blindness.

A third way is to simply point to the value of inclusion. Again, clearly some litigation has suggested that what’s at stake with respect to diversity, with respect to affirmative action, is not just diversity, but integration, and I would suggest that one needn’t desegregate diversity from integration. The two might go together, particularly if we keep in mind again that what’s at stake with respect to excluded students of color is the very nature of American democracy and the right to participate in its benefit. That is to say, universities again, as was mentioned earlier on, function as gateways to American democracy and universities also provide us with an opportunity to define the content of American democracy. So if we think about inclusion in that sense, then diversity performs an important function in providing traditionally excluded groups with an opportunity both to shape the content out and participate meaningfully in American democracy.

I think that diversity should not be ceded, that we should broaden the terms upon which we articulate it and that we should link it to some of the remedial ways in which affirmative action traditionally is defended.

Kimberlé Crenshaw:
Sumi Cho is professor of law at DePaul University College of Law and writes and teaches in the area of critical race theory. We’ve been talking with Professor Carbado’s discussion about how absence makes certain things more salient. One of the groups absent from the affirmative action debate, at least absent in a certain way, is the Asian American community. It’s probably more accurate to say that they’re marginalized in the debate, trotted out when it’s useful, put back away when it’s not. So, what are some of the costs to the Asian American community of this sort of mutual invisibility, marginality in the affirmative action debate. How are those costs shared among the community and those of us concerned about the issues that are really at stake here?

Sumi Cho, Professor, Depaul University College of Law :
I do think there is this unusual sort of either hyper visibility or invisibility that Asian American have with respect to affirmative action. Either we’re the poster children for affirmative action victim hunt trotted out by Ward Connolly or former governor Pete Wilson or the Center for Individual Rights and we’re embraced as a sort of racial mascot, largely by conservatives. Or we are invisibilized and seen as a suspect class to the category of suspect classes, largely to liberals, as evidenced for example by Drew Days and Wade McCrea when they were …. general arguing on behalf of Balky. And we’re very uncomfortable about what to do with Asian Americans in the government brief.

There is this tendency for liberals to exclude Asian Americans from the affirmative action debate and to see Asian Americans as the Achilles’ heel to affirmative action. I think that it’s endemic of both the political problem and a theoretical problem. The theoretical problem is the hyper visibility and invisibility goes to either the conservative embrace of the ethnicity paradigm, the kind of Robert Park assimilationist understanding, which rejects even the category of race. Or the liberal block white paradigmaticism or black exceptionalism, which acknowledges race but only in a sort of black-white format.

If you go back to looking at the affirmative action cases, what I would argue is that the deployment of Asian Americans is actually key to understanding both the hypocrisy of meritocracy as well as the slippery slope from the Balky decision to the Adiron …. [?] case. What do I mean by that? If you think back to the times, not just to the law of affirmative action but to the politics of affirmative action when these policies were being forged, it was a time in which there was a strong coalitional politic, an increasingly radical critique of U.S. society in the late ‘60s and early ‘70s that were essentially united under a critique of white supremacy.

So Asian Americans, Latinos, Native Americans, African Americans had — many communities advocating for affirmative action — had this shared critique. But this was very threatening to society and to the courts in particular. When you look at the affirmative action jurisprudence as I’ve done and some of the personal papers of supreme court justices, especially Justice Powell and Justice Berger and some other key architects, what you see is that Asian Americans played a very pivotal role in the construction of strict scrutiny standard of review as they finally decided to apply strict scrutiny to race based classifications, including affirmative action. This came about because the court essentially was using Asian Americans in this two-sided way. On the one hand, saying that affirmative action is problematic because Asian Americans are excluded sometimes as they were in the University of Washington case, the Deron case, and then later on saying that they were problematic because they are included. So in terms of the narrative, the justices would go through talking about what discrimination can be shown against Asian Americans, it’s absurd to include them, etc. which then sets up logically the two prongs requiring particularized findings of discsriminationl to support a compelling state interest and then narrow tailoring. And so in the end, that’s one way to deal with the sort of coalitional threat, is to narrowly tailor it out. I think our challenge is to reject both the ethnicity paradigm as well as the black-white paradigmaticism in favor of a more progressive and complexified understanding of race.

Kimberlé Crenshaw:
Marianne Lado, we have been talking about some of the criticisms of affirmat
ive action in the president’s statement supporting the filing of a brief against the University of Michigan program. He acknowledged that discrimination is still real in world, that we still don’t have full equal opportunity. But he said that the solution to this discrimination is not these prophylactic measures, it’s not discrimination against other people. It’s redoubling our efforts to go to the core of the discrimination, to the core of the inequality of opportunity, and addressing it there, in particular with respect to schools. He said, My administration stands ready to ensure every child has equal educational opportunities.

What about that argument? Are laws that can better ensure an equal start really being bolstered by this renewed concern about focusing on discrimination where it exists, or are the laws being dismantled? And what are the implications that this has with respect to reframing the debate on affirmative action?

Marianne Lado:
I think Ted Shaw answered some of those questions this morning. One thing he said was that the assault on affirmative action is an attempt to make any effort to do something about racial inequality or even, I would add, to recognize racial inequality illegal. That includes affirmative action at the higher educational level and it also includes efforts to address educational equity at the elementary and secondary levels.

He also said the attacks on affirmative action, I would argue on educational equity as well, are a-historical and decontextual. I want to talk about why that is true with this particular argument. So my first answer is, it seems not compelling or disingenuous, depending on how you want to put that.

I had one example of being confronted with this in a case I wanted to share, two different cases. One in a southern context, where a school district was moving for unitary status, we no longer discriminate, we don’t want to be under court order any more, even though we were segregated previously. And one in a northern context which I’ll talk a bit more about O’Neal which was the school equity case longstanding in Connecticut. In both cases there was an argument that there were inequalities in school opportunities, put slightly differently legally, but inequalities in school opportunities, elementary and secondary level opportunities, based on race. In the south it was said to be a vestige of prior discrimination. In the north we had a different legal argument but there were inequalities and school opportunities based on race.

The state in Connecticut brought in David Armor from George Mason and he made what I call the “bad guy defense.” He made it in Tampa in the Mannings case, he made it in Hartford in the Shef case. I think he made it also in CFE here in New York City which is the school equity case here in New York City. And by school equity, I know you understand that I mean efforts to address inequality in the schools and school opportunities.

His “bad guy defense” was to do a statistical analysis where he said he could predict school outcomes on tests simply by inputting the socio-economic status of kids. He would look at the 8th grade mastery tests in Hartford versus the 8th grade mastery tests of the suburbs or African Americans or Latinos in Hartford versus whites in the suburbs or sometimes Asians were in that pile or not. But he would do this analysis in a number of different ways and it was amazing how his charts were. If you could just look at a blackboard, it was like, I predict that the numbers here will be 56.5 and sure enough, African Americans and Latinos in Hartford perform at 56 and there was only this teeny little variance.

All of that difference was explained simply by socio-economic status, not by anything the schools were doing, not by the lousy facilities, not by the failure to provide libraries, not by the text books, not by the differences in teacher qualifications, not by the roof falling in at Hartford, not by anything that we were putting evidence on. He made this point very clearly. During deposition we just wanted to jump over the seat and strangle this guy, but we restrained ourselves. The one question I really wanted to ask him, after we asked him, what about early childhood education, could that make a difference in schools? Is there any variance that’s unexplained where any school program can make a difference, he said no, not really. Nothing’s really proved. I’ve explained it all. Finally I wanted to say, well why are you in this business? Why are you bothering to spend your life doing studies of education if you think education doesn’t matter. Leave it to us. If you think education doesn’t matter, why don’t you leave it to people who think education can matter.

And that’s what this reminds me of, people who said well, forget about affirmative action, let’s go to elementary — or forget about this — well, OK, forget about it. Leave it to us to do someone work that we think will make a difference. This leads to the second point, which is we have to focus — and this really relates to something Professor Harris was saying — on what needs to change. The fallacy of this argument is that somehow the nation’s schools should or will or do or could be engines of equal opportunity in our day. And they don’t. They’re not. They reflect the racial stratification, the ethnic stratification, the class stratification, the economic stratification of our society.

The school equity cases, if you look at the records like the Hartford case, what you see is whether it’s Rochester, New York or Hartford, Connecticut or Detroit, Michigan, (New York City follows a different pattern but if you read Jonathan Cosell Savage Inequality, there are similarities), there’s an inner city core of largely African American, Latino. In Hartford it was 91% African American, Latino when we filed the case in 1989. A few years later it was 96% African American, Latino. A small percentage white, a small percentage Asians, a small percentage some other groups. But largely African American and Latino inner city. Very small inner city. You can drive in a couple of minutes from one side to the other, surrounded by white suburbs, largely white, and their demographics differed one from another slightly. The inequalities in inputs, in text books, in computers — I interviewed teachers who wanted a computer in their classroom but the PTA had put together their Shopwell tickets and had gotten a computer that was locked in storage because nobody should steal it and they needed software.

Compare that to the suburbs and look at the inputs in the suburbs. They’re vastly different schools. You see this pattern replicated and it’s not surprising at all that outputs, dropout rates, test scores, SAT scores, are different. So let’s see George Bush go into those schools. Let’s see all these people who are attacking affirmative action, Center for Individual Rights, go into those schools, pour money into those schools. Instead, what are they doing? They’re defending these cases with guys like David Armor. They’re saying money doesn’t matter. Small classrooms don’t matter. They’re trying to … every argument we’re making about way in which we can improve those schools.

So I think (a) it’s disingenuous, (b) it’s not reflecting the fact that schools replicate the stratification in our society. We pour resources into those schools in a way that replicates who has money, who has power already.

The third thing is the legal arguments waged, the legal educational arguments, research based arguments, waged against affirmative action are replicated in the school equity debates as well at the elementary and secondary levels. The very arguments they’re making affirmative action, the constricted notion of what equal opportunity is, the constricted notion of the 14th Amendment, that the only way to do something color conscious is to have a pattern of intentional discrimination, the turning your back on societal discrimination. These are the
very things that are occurring in our efforts to address educational inequities.

Look at the CFE case here in New York. So much evidence that was gathered about school equality — look at so manly efforts. Just another example. There’s a group, Acorn, that did a series of reports called secret apartheid on the availability of gifted and talented programs in New York City. Gifted and talented programs turn out to be one engine of mobility in New York City. You get into a gifted and talented program in the public schools, it gets you into a gifted and talented program in the junior high school, Bronx Science or Stuyvesant in high school and then you come to a great place like this. Gifted and talented programs are very important. They send out their parents, Latino parents, white parents, African American parents, to schools and have them ask about your school programs. What they found is that white parents are told about those gifted and talented programs — on average — there are obviously exceptions — but on average the Latino and African American parents were not told about those gifted and talented programs.

When I hear Luke Harris talk about institutional racism, could I go into that school and prove that there was intentional discrimination going on? Probably not. It is so hard to prove intentional discrimination. But institutional racism or societal discrimination that the Supreme Court refuses to recognize is all around us in every decision that’s being made. And it’s disadvantaging those kids. So even if George Bush did decide to dump money into the schools, which isn’t happening, kids are disadvantaged every day. It’s got to happen at every entry level moment. We’ve got to be conscious and try to correct for that institutional racism.

Kimberlé Crenshaw:
Cheryl Harris, our colleague at UCLA Law School. Another way in which racial stratification obviously is making its mark on this debate is through these 10% plans. As you know a lot has been made of them in President Bush’s statement held these plans up not only as a way of maintaining levels of diversity but actually far surpassing levels of current diversity using race conscious remedies. That’s the one side of the debate. There have been criticisms, of course. Those who say that they really don’t do that much. Glenn Lowry interestingly has a criticism that says it’s inefficient. So yes, you might get an appreciable number of people at a cost, the cost having to do with their level of qualifications and preparation.

I wonder though whether there are even more problematic assumptions lurking in the endorsement of such plans, particularly by those people who seem to have more interest and sympathy for the argument that affirmative action should be about class rather than race anyway. So these 10% plans take us in that direction .What do you have to say about that?

Cheryl Harris, Professor, UCLA Law School
I think there’s a reason why the solicitor general glommed onto and in fact in some ways hijacked the impetus behind the 10% plan and why you see some bastardized iterations of them in California and Florida. The bastardized iterations Gerald spoke to earlier are very different in that they do not allow access to the flagship universities, which is of course the whole point. But even apart from that, and as you pointed out, even apart from the question of ethicacy, I think the plans are serving an ideological and symbolic function. They basically go to the core argument of the reason why they have been glommed onto and hijacked is that they are cast as the race neutral alternative that makes affirmative action unnecessary.

Well, the subtext of this argument is derived in fact from strict scrutiny which basically says that race-conscious remedies are to be disfavored, avoided, are in fact abhorrent if you can find another way to do it. So the effect of this at the outset is to erase race. It’s basically just saying that you cannot acknowledge race, where it can only be done under extraordinary circumstances when in fact as Marianne just talked about, the effects of race permeate the entire system. So we have a very complete disjuncture in the entire framing. We start out with a frame that says you can only talk about race in extraordinary circumstances but our experience is telling us that the actual ordinary common everyday circumstance is permeated with racial stratification and racial difference.

The other part of the argument, I think you touched upon in your question, is that affirmative action is to be disfavored, race conscious and percent plans in the alternative are to be favored, because affirmative action helped those who needed it least. There is a way in which the defense of affirmative action has actually ceded this ground and it’s basically a frame that says that affirmative action has benefited the sons and daughters of a privileged course. This has been particularly targeted towards blacks, less so towards Latinos. As time progresses I suspect that will be part of the uptake as well. And that these undeserving people were being benefited by derogating from otherwise valid measures of merit like test scores and so forth. Meanwhile the poor and the under class have been cast aside under this remedy.

So here we have the implication of class hierarchy introduced by the right as an attack on race conscious measures. The contradiction is that the right which is actively pursuing all forms of strategy, political, litigation and otherwise, a politics and economic agenda that is all about consolidating wealth and power actually adopting a populist critique of affirmative action that is claiming to assert the interest of the black poor. Apart from that being part of the Alice in Wonderland world in which we are living, and the one in which we talk about where you have a complete appropriation of the politics and rhetoric of the civil rights movement being deployed against it.

The second part of this is what is maddening — at least I find — is that that ground has been ceded for the most part in people who seek to defend affirmative action. You cannot find or it is very difficult to find defenses of affirmative action that contest the assertion that affirmative action benefited only members of the middle class. One of the unique exceptions is Luke Harris’s article which was alluded to earlier, which actually does contest that argument.

It’s problematic on many grounds. First of all, it assumes that the relevant comparison is between the black middle class and the black poor. But if we were actually to try to keep our eye on the ball — and what is the ball here? — the ball here is white privilege. If we were to keep our eyes on the ball, what is the relevant comparison? Assume for the moment that affirmative action has in fact admitted higher numbers of the black middle class, the black poor. I will assume that, although I don’t concede that. What is the relevant comparison? The relevant comparison is not between the black poor and the black middle class. The relevant comparison is between the white middle class and the black middle class. Now if we ask ourselves are these people similarly situated? Does income indicators for the black middle class mean the same thing as income indicators for the white middle class? I think the answer is absolutely no.

For the same reasons that Jory Steele and Claude are talking about the way in which a test score of 1200 as between a black student and a white student means something entirely different, the income of a black person and a white person actually means something quite different because the relevant question has to do with how has racial stratification affected and shaped that difference. The research of Melvin Oliver and Dalton Connolly and others is now telling us that the ball is not even income, the bal is wealth. If we take a look at the wealth differential, what we find is a very different question with respect to the
situated nature of the black middle class and the white middle class. The are in fact entirely differently situated with reference to the question of assets.

So we have a kind of now distribution or racial stratification of wealth that is the direct lineage of slavery, Jim Crow and intergenerational wealth transfers. The sociologists have done it better than I.

The point is what does that have to do with the relevant differences for the purposes of making decisions about affirmative action? It has a lot to do with it because it’s not just the question of the racial stratification of capital. It has to do with the racial stratification of social capital. Social capital is the term that economists and others use to talk about access, who you know, how you’re hooked up, how you may or may not be hooked up. What are the racial differences here? The features of the black middle class — I use narrative sometimes, I’m scared to do it most of the time because it ends up being hijacked in some ways that make me unhappy — so what is the story with respect to the different situated nature of the black middle class and the white middle class? It means that for example, in my family I’m the first person to graduate from college. It means that I occupy a position of a relatively privileged class. I am a law professor. But I am at the pinnacle of where my family stands, not the middle or representative of — and I realize that most people don’t have law professors in their family. That’s not my point. My point is that when you look at many black middle class families, what you’re finding is a snapshot of the first generation to actually make that transition from something called underclass, which is a racially defined class to begin with, and middle class. That narrative can be spun out in any number of ways. The impact of this form of white privilege actually permeates all forms of socio-economic life. It means that the access to social capital is still racially stratified.

The second point is that we have ceded ground on this question of class to the right by ignoring the historical point about the origins of affirmative action. It’s completely occluded in this discussion. Our need of affirmative action emerged from working class struggles to try to desegregate certain kinds of occupational positions, many of them construction and union work. I don’t know about you but I never thought about people who did plastering jobs and painting as sort of the actual representations of the middle class. What I think that reflects is that the racially defined nature of the class position of black people has been if you had any job at all, you’re middle class. Because the relevant comparison is between that and the people who had no jobs. If you have a job and you’re black and you’re middle class.

This has completely occluded the radical origins of affirmative action Sumi talked about in the context of coalitional politics. It also came out of the very radical black national politics coming out of for example Drum and others in Detroit. This was actually about getting a job on the factory floor.

It’s true that Nixon and others co-opted that position and took it over, but it was an effort on their part to block the more radical forms … that Sumi was alluding to. That doesn’t mean that any particular remedy is deeply invested with a particular political character. In other words I can make a conservative argument for diversity. I can make a conservative argument for school desegregation. The particular form of the remedy does not carry the political character. It’s what it infused with and what it comes from, and that is precisely why on Gerald’s brief, a very important brief, he mentioned …… and others that filed in the … case in an attempt to prevent this hijacking of an intervention, a post hoc intervention, which was an effort to make lemonade out of lemons, for being taken over by the right and promoted as this new form of race neutral affirmative action.

So there’s a kind of slippery and very inchoate understanding of class going on here. It has been characterized a whole lot of people as middle class who might well be described as working class. And we all have some personal narratives to talk about, what these transitions are. It reflects the fact that the deployment land the way in which these plans are being adopted and argued for is an attempt to actually displace entirely the question of race and subsume it within this notion of class, ironically, as Marianne points out, fighting tooth and nail on every effort to try to mitigate some of the effects of class and race stratification.

Kimberlé Crenshaw:
Anthony, since Professor Harris has put meritive on the table, allow me to say something more about your personal narrative than I’ve said about others because it’s relevant to the question I’m going to ask you. Anthony is from is from east Los Angeles, the first in his family to go to college, graduated from UC Berkeley in history and political science, currently pursuing a joint JD/MA in law and urban planning and is a member of SCARE and the National Latino Law Students Conference to be held at UCLA in October.

President Bush is under the assumption not only that these 10% plans work, but also under the assumption that with the increased number of people of color, there’s also a decrease in being stigmatized in school, that now people of color who were in these schools can be proud to be there, that they feel that they belong more than they would be if they were selected, as he called it, “solely on the basis of race.” So you’re a student, you’ve done well at UCLA, you’re going to a law firm job, why aren’t you a poster child for President Bush’s plan. Maybe we can call you the “beyond the affirmative action” baby. Why aren’t you that person?

Anthony Solana, Student, UCLA Law:
Because it puts me in a vacuum that is not only unfair but totally devalues the work that has been done to put me in this position. I can honestly attest to the fact that I am the product of a history of struggle, a history of struggle that has been described in the earlier panel today, a history of struggle that we try to put in our anarchist brief — you need to read this brief. It’s the veterans of the civil rights movement and the power which they described that history of struggle.

I hate to give anecdotes because that’s the way they also find the debate, but I do think you need to create some counter-anecdotes about who is winning and losing in the system. Because it is a system of winners and losers. The subsequent civil rights movement and heirs of reconstruction had been us saying we’re tired of losing, and not losing because we deserve to lose on the “merits.” But because we had been relegated to the bottom of American society — on purpose, to sustain a certain privilege, a certain class and a system of power.

My own personal example: I did grow up in east Los Angeles, but we were lower middle class family. My dad was an entrepreneur. Basically he had a little taco truck. I had the great fortune of going to a parochial school, not because of the level and quality of instruction but the fact that it was a safe environment. Certain things happen unfortunately. So therefore, that gave me a certain advantage that other students didn’t have. Again, you can’t put me in that vacuum. However, I did well academically but I got an 860 on the SAT score. As you know, the scoring changed now, but that’s extremely low. I think the average SAT score at my incoming class at Berkeley ’94 were somewhere in the lines of 1300-1400. So I was completely out of that level of competition. Because of affirmative action, they looked at the context of the high school, an 860 was the third highest score, probably one of the highest GPA.

What they do is they take everything out of context and they do it for a reason. I believe that those who are against affirmative action need to take a reme
dial course in American history, not just any course in American history, a remedial course, because not only are they spitting and desecrating our history but they are lying about it actively for a reason and for an agenda.

How did I get into UCLA Law School? It’s a competitive. I hate to check rankings but it’s in the top 20, so how did I do it? The only reason why we have maintained these numbers is because of the work that we have done and the work that was done before … was passed. We knew that this was coming down and we couldn’t stop it. At UCLA we started a law fellows program. The dean started this program before she quit and funded the outreach office which is curious — we have a huge budget crisis which is affecting all the states in the country so we don’t know what’s going to happen with that. But that has done a lot of work to increase the “diversity” of our law school.

Also the work that students do cannot be undersold in terms of its value of attracting students to our school and to the EC system because time and time again when we call students that get in, they have other better options. They have Yale, Harvard. It’s not only that the numbers have been maintained but the type of students who are getting in now is completely different. Not to say that their value is any less than ours, but it’s a shift in who you’re privileging and who you’re not.

A couple of years ago, a few students and I put together a people of color guide to law school admissions. We put it up on the internet and within two months it’s got almost a thousand hits. There’s an incredible lack of information out there.

So you can’t make me the poster boy for various reasons, but number one, is that I am truly a product of a history of struggle, and beyond all that I have been privileged in many ways. But it’s never been about me and it’s never been about merit — at least in the way they frame it.

Kimberlé Crenshaw:
So let’s use your comment as a transition of some sorts to talk more about the message that we send out, the proactive. We’ve heard now from all of the roundtable participants about their analyses, what they see, what is. Now building on that, the question is, but what does that mean in terms of where we are in this debate, what we can say, do, what are some of the priorities that we can pick up. Marianne, a lot of Americans still seem to believe that there is a structure of protection out there. There’s still a civil rights net so that when the President says something like, We don’t need affirmative action as prophylactic. Let’s just go to the cases to challenge these discriminatory conditions. They believe that’s a real option and I’m told by pollsters, when I say what happens when you tell them it’s not a real option? They say well they don’t believe you. They say that the President’s too caught up in the war, in securing our shores, to really pursue this concerted effort against domestic civil rights.

So what is this affirmative action attack a smaller part of? What’s the big picture that’s going on here?

Marianne Lado, New York Lawyers for the Public Interest:
I’ve been told that I shouldn’t paint the picture as bad as it is because it will always come back to haunt us as we brief the next case. But it is bad. I would advise anyone who hasn’t read the concurrence in the Garrett case which came out a couple of years ago — this is the case in which the Supreme Court ruled that people who had been discriminated against were employees of the state who can prove they have been discriminated against can’t sue the state for back pay because the state is shielded by immunity. There’s this incredible concurrence by Justices O’Connor and Kennedy which starts out just fluid and beautiful and phenomenally insightful, that people with disabilities have been treated badly, that there is ignorance throughout the land about people with disabilities. They’ve been stigmatized. They have been ostracized. No doubt that has shaped their opportunities. But the second paragraph goes on to say, but this does not constitute unconstitutional discrimination.

Unconstitutional discrimination is limited to those things with animus. Well, for those of us who went to law school more than a year ago, discrimination was stigma. It was all these things that were in the first paragraph. It was illegitimate, invalid forms of stereotyping. So what are they talking about? This is a narrowing of the idea of discrimination, a narrowing of the meaning of the 14th Amendment. What we’ve been calling the rollback of civil rights is real. Some civil rights laws have been knocked down, some are being served up and are the next to go. Affirmative action is part of this larger world.

A couple of the challenges here. There are I think 4 important strands to what the Supreme Court is doing and what the courts are doing. One is that they are simply saying that what is discrimination is narrower as I just outlined. Second, that Congress doesn’t have the power to act in a variety of ways, cases like Morrison. Third, even if Congress has the power to act generally, that it certainly doesn’t have the power to pass laws that would subject the states to suit. We’re moving in that way from what Eric Foner talked about in the book Reconstruction, about how the 14th amendment really encompassed or wrote into our fundamental law the primacy of national citizenship, that the Civil War was about creating national citizenship and the rights of citizenship. Going back to the pre-14th Amendment world in which we no longer have a primacy of national citizenship, what we’re worried about is offending the dignity of the states in Scalia’s terms. Which is very much a pre-14th Amendment point of view.

So not being able to sue the state, that’s cases like Garrett. Hibbs is currently before the court, a whole series of laws we will no longer be able to enforce against the states. The states are somehow above the law. Forget about the rights of national citizenship. And then even if — this is encompassed in discrimination — even if Congress does have the power to do something against the states, there’s a whole other body of law that very much affects our affirmative action, which is not being able to go into court to enforce the law. The Sand…. case, the Gonzaga case, the school equity cases.

All this sounds very technical but it’s our job to make sure that it doesn’t stay technical. It’s really not about sovereign immunity. Someone closed the earlier session by saying this is not about reformulating of the constitution, it’s about reformulating of our country. We need to take the technical language about the constitution or sovereign immunity or legal language and translate it back to our country. What the constitution is about is how we behave toward one another, what are the ground rules. So it’s not about suing the state. It’s about — if I am discriminated against when I have a disability, can I do anything about that? It’s about — if I am in a community that is overburdened by power plants and sewage treatment plants, a form of institutional racism, can I do anything about it? If I’m in a lousy school and I’m not getting what I need, can I do anything about it?

So we need to change that language and interpret and re-work that language. One of the silver linings about how terrible the situation is I think is that the folks who care about affirmative action, who care about disability rights, who care about environmental justice, who care about women’s rights — all of these things are all in the same boat. We’re all being hurt by some fundamental restructuring of what it is to be in America, of what it is to formulate this country and our fundamental laws. So there are groups coming together in a variety of unique ways to try to network, create this public education campaign, to try to move this project forward.

Professor Crenshaw asked me to mention one such
effort which a number of you are involved in, the National Campaign to Restore Civil Rights. There are people at Columbia Law School like Sarah Alvarez and Naomi Abraham and many others who have been very active here, are trying to move that issue forward We’ve got a public education campaign. There are people all across the country who are trying to do work in their state legislatures. There are meetings in Washington, trying to bring people together to connect the affirmative action issue with the disability rights issue, the environmental justice issue, and try to create a platform for action and for public education that addresses all these issues.

Kimberlé Crenshaw:
Lee, if we imagine a world that Marianne has created where these groups are effectively trying to reverse the rollback, one of the questions is going to be how then do we position this particular issue within that rollback? How do we articulate it in a way that the public is willing to hear? Let me throw this out as a possible response: a lot of people don’t necessarily buy the entire conservative assault on rights. Once they hear about it, they’re appalled by it. They want to do something about it, but they will say, look, we all agree that diversity is a value and we all agree that affirmative action and race conscious remedies are controversial. So why don’t we get rid of that, remove that from the assault of the right, because that’s a deflection that takes us off in a new direction. Once we take it off the table, we don’t have to worry about them coming at us on race issues any more. What’s our response to that argument?

Lee Cokorinos:
Whatever our response is, we have to have the same capacity that the right has to move that message and we can be right in detail and in general about all of these things. But unless we’re able to make that distinction that Ted made in the last panel, which is that the ambiguous understanding and analysis that most people have and the confusion, and frankly the lack of understanding or historical knowledge or education at all in a lot of cases, is somewhat different from the group that is actually driving this assault on diversity for the past 15, 20 years. But it’s still an important question.

I think we do need to move from a culture of talking about what’s positive in diversity or in the recognition of ethnicity and gender to also a culture of engagement with the right, which is missing. That implies a whole number of things. It involves actually putting a face on the source of all of these cases. There are a lot of candidates — Ted Olson is one. He argued Hotwood. He’s now the solicitor-general. Gerald Reynolds at the office of education, was with the center for new black leadership. These are people who actually have written. They do have a track record. They’re not like Miguel Strada …. We can begin to engage with that.

I think that one of the things is that we have to make that distinction so that it doesn’t look like we’re oversimplifying the problem, but actually beginning to dig down into it, while at the same time engaging the right.

The other big problem we have is communications and it’s never going to be solved by focus grouping. These are very complicated issues. If you read the supporting testimony in the Meacus briefs and the briefs of the parties, these are very complicated issues, where social scientists are engaged to actually turn that into a politically serviceable campaign. It’s an extremely difficult thing. The relationship between those logical arguments that we intellectuals like to make and the broader themes are complicated. So it’s also an issue of leadership. Do we have a king who can actually get out there and talk about these in a leading role, as well as the supporting scholarship. All of these things are in the future, but we do need a way to get them to a position where the nature of the society that we have is at stake and that we have to struggle to get that.

The other implicit assumption is that we have a democracy. Even if people did think all of this great stuff, that they can overcome sovereign immunity, that they can get on TV, that they can get a bill passed through the legislature, which didn’t happen after the civil rights movement. Most of this stuff is politically driven, as you all know.

So, it’s a big agenda, but I think the first thing that needs to happen is that there needs to be the same kind of social cost to the right driving this that they put on us. In that context I might mention that people need to think about where the right is going. Visit their websites, look at what they’re doing. They’re already tackling the concept of diversity. The ….. heritage foundation had a program plugging this book which is an in-depth attack on the “diversity industry.” There are some amazing quotes. But there’s a next stage beyond the Michigan cases. It’s about the scholarships, the summer programs, the high schools and it’s still about contracting, because there’s a lot of federal money that’s still going there, it’s about contract compliance.

There’s a cleanup and a sweep-up dimension to that too. Unless we engage with that and actually mess their hair up in a way that will get people’s attention, it’s not going to happen. The war is important but the civil rights after ’64 was passed at the height of Viet Nam, ….. came about at the height of the McCarthy period. There has never been a period in history when these issues haven’t been in some ways complicated by what’s going on or what the U.S. is doing in the rest of the world. But it can be done.

Kimberlé Crenshaw:
Devon, as long as we’re talking about 1964 and 1954, Brown vs. Board of Education of course comes to mind. We’re about to celebrate the 50th year anniversary. Some people have linked (as Ted Shaw did earlier today) the beginning of Brown to sweat and the end of Brown to Michigan. There’s some sense that we might be dealing with bookends. Given the fact that we’re going to have another window of opportunity to talk about the meaning of Brown, is there a way that we can talk about the relevance of Brown today in ways that are more rich than just the diversity language that has been part of the defense of affirmative action. What’s our take-home message to weave a richer idea of diversity that you developed into the celebration of Brown vs. Board of Education?

Devon Carbado:
Part of that might involve reclaiming Brown in at least 3 senses. One is Brown was fundamentally a case about substantive equality. There’s something peculiar about the terms upon which blacks can litigate equality in education today is actually narrower than the terms upon which they litigated in the context of Brown. If you think about the separate but equal regime, that afforded you an opportunity to contest whether or to what extent education or access was in fact equal. That we know we cannot really do today even as education is de facto segregated. So one of the things we have to do is ask ourselves does it make sense to conceive of black educational opportunities today in a way that’s more restricted than it was in the segregation context.

Another aspect of Brown we need to rehearse more strongly is the social meaning aspect. To what extent does segregated educational facilities send a particular message about blackness. One of the ways in which segregation was contested was of course the link that material conditions under which blacks lived to the symbolism of black segregation as well. The whole point of separating the races was to send a particular message about who whites are and who blacks are and should be. We need to bring that social meaning understanding of race into a contemporary discussion about affirmative action as well. What does it mean for an institution like UCLA to graduate 2 black students? What does that say about who blacks might be? Wh
at does it say about what kind of institution UCLA is? I think we have to invoke notions of stigma and work that. Justice O’Connor in the affirmative action context has no qualms talking about the extent to which affirmative action stigmatizes blacks. We need to talk about the extent to which we would rather be included and think about these stigmas of exclusion than the ostensible stigmas that she claims go along with inclusion.

Part of that has to include our point of view ….for affirmative action being, I’m an affirmative action baby, I’m perfectly fine with it. Too often many of us who are engaged in discussions about affirmative action participate in a kind of exceptionalism. We’re talking about benefits that other people need, but that don’t necessarily attach to us, that don’t necessarily describe our experiences, and that we somehow are removed from. We need to have a more honest, open and less conflicted relationship to affirmative action. Certainly those of us who are ……… would sometimes be surprised at the extent to which some students didn’t understand what the absence of affirmative action would mean. Somehow they removed themselves from the very process that was being contested. Part of what we need to do is to recognize that we’re all in this together and we’re all affected by it. It’s not the case that we can exceptionalize ourselves in ways that would suggest that affirmative action isn’t needed.

A third point we need to push strongly is what exactly does color blindness mean? Color blindness obviously has a lot of traction, a lot of political currency. We need to remind people of its disreputable history. We can turn to the p…… effect, a moment that is often rehearsed as signifying the extent to which color blindness is a good thing. Think about how color blindness has developed in the context of that dissent. It suggests that the constitution is color blind. Whites shouldn’t worry about blacks because whites are after all superior to blacks. And by the way the race we really should be worried about is the Chinese. That’s the moment in which color blindness is …… as a constitutional norm. We need to remind people of that particular history when it gets trotted out as this ideological way in which race should be organized.

Kimberlé Crenshaw:
Sumi, drawing on the last point that Devon just made and linking it back to what you talked about earlier, here’s another moment where the appearance of Asian Americans in the law is doubled. There’s the appearance of the group that Justice Howland says this really proves the irrationality of discrimination against blacks because even they get to sit in the same cars. Then you’ve got the flip side a little later with the model minority, which is all about here’s another group that has been able to make it. It challenges those who want to make an inclusive argument to figure out how to do it. So if we were to come up with a primer, some basic steps in articulating the affirmative action argument that doesn’t reproduce the marginality, what would be some of the basic bases that would have to be covered?

Sumi Cho:
I do think that we have to reframe the issues from being very defense about affirmative action, and especially for the Asian American community, I’m looking at it primarily from the vantage point of does it help us or does it hurt us? Whether or not our support is really going to be premised on self interest or a broader concept of social justice. I think that’s really key and I think that that’s where in general the whole movement has to go.

If you look at what the Center for Individual Rights has been doing, they have been expert. I would liken them in a way to the environmental justice movement as strange as that may seem in the following sense. That is because they see this not simply as a legal battle. In fact they view the law suit I believe as a larger means to fight a political cultural battle. That’s what’s really key. That’s why these compelling narratives of Jennifer Gratz and Barbara Gruder and everybody else who is a victim including Asian Americans at times comes out over and over again.

What has been some of the left’s downfall is that we’ve been doing it in large part as a legal battle, one in which we are incredibly restricted by the terms that the supreme court has already defined in throwing out societal discrimination and historic and institutional discrimination. How convenient. And talking about how all plans have to be so narrowly tailored etc. So this is highly problematic and we forget that what’s really at stake in my opinion is not so much the outcome of the Gruder or the Gratz case but really that it’s a hearts and a minds campaign that is being waged here.

Don’t forget after Brown there was massive resistance on the part of the south to frustrate desegregation efforts. After Bocki we have what I call passive resistance on the part of liberals and civil rights organizations that saw this silver lining of the Bocki decision, who saw that we can win through the administration of admissions programs what we lost in court. The problem with that is that it drove underground the whole discussion of historic and institutionalized discrimination. It re-inscribed meritocracy and left untouched testocracy that is so problematic. It promoted a completely anti-coalitional approach to politics.

I think now we have the opportunity to re-think, since all bets are off. Let’s re-do it. It’s a hearts and minds campaign and what they are really aiming at is your generation. They were threatened by the ‘80s generation, ironically a time that’s conceived of as very conservative under Reaganism and it was. But what has really got people freaked out that write these books is what they refer to as the culture wars on the university campuses in which the battle was clearly won — by people coming out of anti-apartheid movements and linking racism overseas and oppression generally to racism at home and on the campus and in the community. That was so overwhelmingly won culturally that that’s when the whole political correctness debate emerged in the late ‘80s and early ‘90s. Essentially we lost at that moment and lost site of these political battles. So the ‘90s have been this very scary place where we have forgotten what’s at stake.

So I urge your generation to look at this in this context. Go to the march on April 1 in Washington, DC. Organize your colleagues before and after. Talk to other classmates about it and make it clear that this is in our hearts and there will be massive resistance. It’s not the same as what happened before which people critique saying how can you disrespect the law. That’s highly problematic. It’s not the same as that kind of massive resistance because it’s a massive resistance that is a resistance against re-segregation and the return to white supremacy in this country. So it’s a massive resistance to inequality as opposed to a massive resistance to equality of the Brown era. So I hope that we don’t lose sight of that in thinking about what’s currently going on.

Kimberlé Crenshaw:
Luke, now that we’re talking about how to talk about what we want to talk about, and also thinking particularly in terms of this generation, let me ask you about personal testimony as affirmative action beneficiary. You are the chair of political science at Vassar, Ph.D., JD/LLM from Yale, Fulbright scholar. You’re the kind of person that a lot of people would think with those credentials, you’re the last person who would be a beneficiary of affirmative action. Even if you were at this point you’re one of the last ones to say so. So, number one, why is it important for those of us who are beneficiaries of affirmative action to come out at this point and to talk about it. What function does it serve, and why is it that so few people who obviously are beneficiaries of affirmative action ….. [interruption in tape]

Luke Harris:
Let me start by saying why I completely identify with affirmative action programs. There’s no way I would have gone to college without it. I never felt stigmatized by affirmative action. When I began to hear about it in high school, affirmative action was for me a breath of fresh air. It was the first time that I ever got the idea that maybe I could go to college. I can see this now as a middle-aged man. I didn’t see this when I was growing up as a teenager. I wasn’t particularly introspective. When I look back at my life now it’s clear that what stigmatized me was being poor, being black, being separated from my mother who was a street prostitute when I was young, being trapped in high school by the time I was 13 or 14 years old, being told by a black guidance counselor when I was 13 that a guy like you shouldn’t go to college. At that point I wasn’t thinking about college one way or another. I said why? He said you don’t do too well on IQ tests. What’s an IQ test? I didn’t even know I had taken one. He said a guy like you, you’re never going to be into physics, biology, algebra. I was thinking yeah, that’s right, I don’t’ even know what that stuff is.

That was a powerful argument to me at the time. So I got trapped in a third-tier urban high school in Camden, New Jersey. I don’t know what it’s like in the suburbs, at least I didn’t in those days. But I know they took us on recruiting trips to Fort Dix, to McGuire Air Force base and they were talking about Viet Nam. I was listening to Mohammad Ali on TV saying Viet Nam? — why you want to go killing those Viet Congs? What’s going on here? I looked, I saw this vision of affirmative action and said, I can go to college. I don’t want to go to Viet Nam?

I listen now to people talk about people in elite schools, they have minority students, black students, Latino students, test scores that are 200 scores below the whites, and I’m thinking, I didn’t go to any elite school. My test score was 300 points below non-elite whites. But that didn’t prevent me from going there and outperforming them and doing the things that I’ve done in my life.

Why is there such an ambivalence on the part of those of us who have been beneficiaries of affirmative action to articulate this? I will say there are a lot of reasons for that. Some of them have to do with ideological difficulties we have in our own communities. There’s a profound ambivalence about affirmative action in the progressive black community. If you read Cornell West’s book Race Matters, he’s ambivalent about race based affirmative action. If you read Ellis Cost’s book about growing up in the Chicago project, about the rage of the black privileged class, that book is one of the best descriptions of the institutional forms of discrimination that middle class and more privileged black Americans faced. But when he gets to the chapter of affirmative action, all of a sudden he’s talking about preferences, moral dilemmas, feeling ambivalent, and it reminds me of really the first time I confronted these issues in the classroom setting as a quasi teacher.

Gerald and I were together at Yale and we had this class that a black professor was giving on constitutional law and affirmative action, and almost all the students in the class were of color and I remember the section of that class where we discussed issues of meritocracy. And that was one of the most difficult classes that I’ve ever been involved in. Why? Because the students of color — they wanted to think that they were given an edge. They wanted to think that they were just like everybody else. Moreover, these criteria said you’re the smartest Mexican American, the smartest black American, go. They kind of liked that. But they didn’t like the part that said but you’re inferior to all these white people.

So there’s this profound ambivalence that is pervasive in the African American community and other communities that are beneficiaries of these programs. We have to learn that it’s not just white Americans who are right wing with fat stomachs and red skins that have to learn about the limits of these traditional notions of meritocracy. We have to learn these things ourselves. It’s not just white Americans that have to learn about a multicultural, multiracial sense of history. We have to do those things. We don’t know a lot about what goes on in all the communities that are involved in affirmative action programs. We don’t know much about each other. So we have to get in bed with what it means to ideologically shift away from false conceptions of meritocracy which are related to false moral dilemmas around modest sets of programs.

Affirmative action is the only set of programs that ever told me and people like me that I had the chance to do anything I want. No other set of programs in America has done that. Why the hell should I feel ambivalent about that? If there’s one thing about American society that I should not feel ambivalent about, it is that. Why in fact do so many people of color have so much ambivalence? Because as Cheryl said this is an Alice in Wonderland debate. Think about it. If we were in post-apartheid South Africa, we’re debating the great questions of equality and affirmative action. We try to do that through the life experiences of middle class white kids, and not focusing on people living in the tribal lowlands. Well this is post-apartheid United States. The great questions of affirmative action aren’t shaped around our stories.

So how is that going to work? It’s not going to work. What’s going to make us feel comfortable? Telling our stories. We have to not buy into the same beliefs that we’re challenging rights and dominant forces in this society. We have to learn not only to love the people in our own community in more complex ways, but we have to be into the Asian American communities, into the Latino American communities. If you’re a heterosexual black, you have to be into gay people. We have to think in terms that reflect human dignity and respecting the rights of all of us in this country in a really profound way. All these beliefs that we’ve been talking about were about what represents normative conceptions of a meritocracy in this society. All that stuff has to be reframed in the post-apartheid era. I’m here to tell you that we’ve not begun to have that debate yet. Until we do, there’s going to be great uncomfortability, even within our communities about these relatively modest programs that have come nowhere near close, nor would anybody have expected that they would create a situation where we were fairly represented in any mainstream institution in contemporary American society.

Kimberlé Crenshaw:
Let’s bridge classrooms a few decades ago to a classroom today. Anthony, in your testimony you mentioned about the effects of isolation and alienation in the classroom and to play devil’s advocate I think some critics would say take off the training wheels and experience American institutions the way everybody else does. That is as an individual, not as a member of a group. So grow up, they say. What do you say to that? What is your outgoing message?

Anthony Solana:
Number one, I would say treat me as an individual, not as a member of a group. Because that’s the way they framed it. That’s not my fault. They have always treated us as members of groups for their convenience. So for them to turn back and say be an individual, don’t separate yourself from the context, put yourself in a vacuum, is disingenuous and beyond disingenuous, it’s simply a way to replicate and perpetuate that system of power.

What the professor was talking about right now resonates so strongly with us in this isolated situation, is the fact that we are spokespeople for our race, whether we like it or not. We have people coming in our class. I went to Berkeley, the whole tradition, I was fairly less disciplined, that’s a w
hole different issue. But you have conservative people of color. However, you had to throw them in such a hostile crucible to finally awaken them to the true realities of what was really going on. Whether that’s a good thing or a bad thing, honestly that’s a debate that has to be far reaching and profound that we haven’t had.

At the end of the day we cannot separate ourselves and we are doing ourselves an enormous disservice if we continue to perpetuate our own investment in the system. For the most part, the people sitting in this room are in one way or another invested in this system. We have been told that we are unique, that somehow we made it. We’re elite, we deserve to be in this position. A lot of people don’t like when I tell them this, but you know what? There’s nothing special about you. In my situation and in many of your situations you got fortunate. The realities that we have lived, we didn’t get caught in that system. We maybe had a second shot in some way. That’s what the majority has. They have multiple shots at that apple. If they fall down, they can get up again. They can get back up over and over again.

Therefore, my individual reality within the system, yes I am an individual but I am constrained and not only constrained, I have been constrained, relegated to this group, which I am proud to be a part of and I will fight to advance for it. But to turn their history of misery, which has been cast upon them through an agenda and — it’s so dishonest what they’re doing. I think that our generation has to step up to the plate. 209 in California in … was our fault. We fell asleep at the wheel. 187 woke us up a little bit, at least in the Latino community. It is my hope, whether we win or lose this, as Mr. Shaw alluded to, that it’s not over and it’s only the beginning. I think the student activism that we’re seeing now, the activism not only in progressive communities but even in corporate communities, it’s amazing that Fortune 500 companies filed an amicus brief on this case. I don’t think people really understand how profound that is. So we just have to keep on going and it doesn’t matter what they do, it matters what we do.

Kimberlé Crenshaw:
Janine, I had an interesting question from someone yesterday about these two days. Let me try to paraphrase it. This is affirmative action, but is it about race or is it about gender? If it’s about race that’s sort of not what I do, if it’s about gender that is what I do. So let me know which one it’s about. So, what do you make of this perception, and is it related to the way the issue is covered and the way we need to now start talking about it.

Janine Jackson:
It absolutely is related to the way media have presented the issue. When I looked at coverage of affirmative action, I found a tiny fraction of stories that even addressed affirmative action’s impact on women. When I brought the information, it was like 2% of the stories were about that. When I actually presented the research to journalists and said women are absolutely missing from this discussion that you’re having, they were shocked. I think part of the reason they were shocked was because they all used this device where in the beginning of the article they would say affirmative action policies for women and people of color — throw it in there — and then the whole rest of the article would proceed to deal with race. In the context of where this discussion has gone we have to recognize the political strategy behind that; excluding or fractioning women works in many ways as the use of Asian Americans as you can use them as you like and the right has done just that. It plays women, meaning white women, against people of color, which as a black woman, I’m not even in that picture but it frames the discussion such that you can either get angry because after all white women shouldn’t need affirmative action and that’s one of the reasons we don’t need affirmative action. It’s benefited these people who don’t deserve it. And you’re also at the same time playing different sectors of the community against one another. It very much echoes the language of the organized right, but it also echoes the framing of the whole dominant side.

So getting back to in terms of what we need to do, it really is what Luke has talked about in terms of re-visioning the whole system that we’re working with of meritocracy. I would say the same thing for my purview as a media critic. The same thing on a smaller scale is precisely what needs to happen with media coverage. We have to get journalists to revisit and to re-vision what they mean by balanced coverage of the issue, for example.

My major finding was that articles were, according to many journalist standards, absolutely balanced because after all, they had half the sources being pro affirmative action and half the sources being con. So were they doing justice to the issue? We have to change their whole notion of what they mean by balanced coverage of the issue to the point where journalists are talking about white male privilege. Where that is a part of the equation. Where they’re talking about actual policies and putting them into their complicated contexts, and where we’re refusing that kind of simplification. Where you have women, then you have people of color, and these are separate groups. So I do gender, I don’t do race. On a very simple level, it suggests that eliminating affirmative action policies would have no impact on women, which of course it would. So it’s a fundamental misrepresentation of the issue.

Part of what we have to do in response to that is to complicate it up again. But it really is, from the perspective of media, it entails no less radical a change than we’re talking about in the larger society. Right now there’s a climate among journalists — there’s a book by William McGowan that opposes affirmative action within journalism — and it’s been very well received. The guy has been at the national press club. So white male within media itself within the industry, there’s a framing of diversity versus excellence. Diversity is presented as a kind of social value which we may believe in, but we’re journalists and it would be ideological for us to tack on this social value onto our nuts and bolts reporting. It’s that same kind of re-visioning of the very frame of the discussion. What do we mean by balance on this issue, has to happen with journalists in the same way that it has to happen in a larger society.

Kimberlé Crenshaw:
Cheryl, last but definitely not least. Speaking of institutional white privilege, many of the listeners here and on the web will recognize you or will have been introduced to you through your article “Whiteness as Property.” It seems that on one level we are dealing with ongoing manifestations of entitlement and racial capital, but the question is, are these academic concepts or can they be usefully deployed in this public discourse to counter the belief that our position to color consciousness is nothing more than a basic principle position on equality.

Cheryl Harris:
I think part of what my article was attempting to do was to actually excavate or dig up the relationships between what we think of as societal entitlements and race and how do those things get joined. Why is it, for example, that Bocki and Barbara Gruder and the rest would think of themselves as being entitled to a position in these institutions, even though there were other things at play that excluded them. In Bocki’s case it was his age. In Gruder’s case it had to do with her class status and others. But it’s very interesting that we are not at present, even as the right develops this sort of populist language about class, there is no as far as I know any sort of right wing sponsored initiative to actually make clas
s based inequality actionable under the constitution. There’s no effort.

What’s interesting is you mentioned Gerald Reynolds, and this is a digression, but I actually debated him on a panel in the wake of proposition 209 when he was still at the Center for New Black Leadership. One of the questions came up about this correlation between test scores and class. It was very clear from Reynolds’ argument that Michigan was on the agenda. They had already filed freedom of information act requests or the missions records for Michigan and Michigan was the only one that had complied. They had actually filed ….. requests from a number of different institutions. Michigan had replied. It was clear that Michigan was on the agenda.

But in any event, in response to one of the questions from the audience was what has been described here is a way in which the test function to exclude people on the basis of not only race but class, so why isn’t the Center for New Black Leadership take up a case in which we try to actually frame a set of arguments that says that class based discrimination is actionable under the constitution. Dead silence. Because they are not at al interested in attacking this form of hierarchy.

I say all that in a sort of roundabout way of answering the question. It seems to me that part of the problem has been that any discussion about race in this country has always been controversial. There is never a moment — we could start from the very beginning — as Ted Shaw talks about, there has never been a moment where invoking race or talking about racial stratification in this society has been an OK moment. That is, that everybody is OK with putting it on the table. I think we have to at this point not accept the argument that to discuss these issues is somehow toxic to the general public, that therefore we have to scale back or in some way not talk about these things in these very explicit terms.

Part of what I was trying to do when I talked about whiteness as property and entitlement and race was to try to talk to multiple audiences at the same time. I don’t know if I carried it off. It may be that’s a piece that some people read and are completely dismissive of because they don’t see themselves as represented in it. But I was trying to talk about the way in which white identity has functioned as a kind of coalition across class in certain lines in which expectations of entitlements were often more important than what was actually delivered. That these expectations nevertheless take on a real life and operated in ways to oppress black people, to oppress Native American people, and to oppress significant numbers of white people.

But my principle audience, if I stop and think about it now, that I’m interested in is actually the community that Luke was talking about. And that’s not to say that I’m writing off other audiences or that I think that these things are not important. But I think that understanding the way in which the current forms of racial stratification work and to be able to name it is critically important to building the kind of political movement in our communities that is going to be needed to carry this argument forward.

What would I start with? How would I begin? Let’s start with the living conditions in which people find themselves. Let’s start with what their schools look like. Let’s start with what their housing conditions look like. Let’s start with the kind of sociology that tries to lay bare the way in which inner-generational wealth transfer actually affects what happens in terms of people’s lives today. What does that mean? It means that the legacy of both past and current discrimination means that my ability to pass on something to my son is absolutely affected right now. What I will be able to pass on to him is affected and stratified by race.

To break it down, what they’re talking about is the way in which the fact that even among the middle class, black people’s level of home ownership is different from white, and that the value of those homes is actually depressed by race. For example, if I were to go out tomorrow and decide to sell my house which is in one of the very few integrated areas in Los Angeles, what a wise real estate broker would tell me would be to take out all the pictures of anybody in my house that’s black and to basically vacate. Leave. In order for them to get the maximum value for my house. Because the actual presence of my race in the house would be a depression on the value. That’s today. That’s not last year, 50 years ago. I could pull out the deed to my house and show you the racially restrictive covenant that said neither agents nor blacks were supposed to live in this area.

This is all part of what I think might be a way of actually bringing this to ground. The other area where I think that is right for this kind of intervention is if we think about the ways in which we are all being profoundly affected by the racialization of crime. I realize that that may not seem like it’s an area that’s connected very much to the conversation about affirmative action but whenever I have talked to certain audiences about color blindness and the way that the court has constituted a kind of erasure of race, I usually have some poor person raise their hand and say, but what about the police — meaning that the entire criminal justice system is functioning on a race conscious basis. Not only race conscious but race targeted basis. What that question evokes is the kind of disjuncture between what the rhetoric is promoting and what people are experiencing. I would venture to say that regardless of class, this is something that many communities of color have connection with in their personal lives. You don’t have to go too far to figure out what the impact of that is.

I guess I would say that in some ways I believe that one of our necessary interventions here has to be to begin trying to talk to ourselves and to define ourselves, as Luke said, broadly. Not just narrowly, but to define ourselves in broad terms. And to change the terms of the debate from one of entitlement, which is where we have been, to one about social justice, which is about the greater good, not just the good for ourselves but the greater good.

Kimberlé Crenshaw:
Thank you, Cheryl. That’s a wonderful note to end on. Ordinarily we would try to have some questions but we have gone the full two hours.

Thank you for your attention and your participation.

[end of tape]

– top –


Section II:
Defending Affirmative Action Conference
Affirmative Action Workshop
Friday, March 28, 2003

A) Morning Session

Kimberlé Crenshaw:
Before we move to the video, we have two final speakers. We’d like to hear a little bit from them, particularly as we move to the video, both in terms of the work they do, reaction to what they’ve heard so far, and what we should be looking for as we look at the representation of affirmative action in the media. The first person is Walter Fields(?), CEO of the Northstar Network, a black news outlet network on the web and eventually on cable television, a former colleague and commentator at MSNBC. Walter. (Applause)

Walter Fields, The Northstar Network:
Thank you. I’m going to make my remarks fairly brief, because I know we want to get to the videotape. First let me say it’s good to be in Harlem, although some of us want to say Morningside Heights. (Scattered Laughter) It’s always good to be uptown having this sort of discussion. My partner is Robert Tarver(?), who is in the room and you’ll be hearing from shortly too. The two of us are former MSNBC compatriots of Kim, and out of our frustration with MSNBC, we decided to launch our own network. It’s called the Northstar
Network, taken after the name of the historic newspaper founded by Fredrick Douglass. We’re on the web right now, our address is

And just picking up on the professor’s remarks, we decided to use a thematic frame for the Northstar Network, and our frame was equity, looking through the prism of race and white privilege. And we view the issue of affirmative action as just one side of a continuum, a frame. So when we look at an issue like affirmative action, on our frame it’s part of a continuum that includes rampant economic dislocation, the Census Bureau just released a report last week that shows that white males earn 30 percent more than black and Latino men in the year 2003. Another side of the frame is what we’re calling sort of the creation of the permanent defender class in America, when you look at the disproportionate numbers of blacks and Latinos in the military.

The other side of the frame is the rampant imprisonment of blacks and Latinos. And so when you take affirmative action and you complete that frame, the picture inside of that frame, I believe that society sees, are black and brown people who are undeserving and who are burdens on society due to their behavior, which goes to the episodic frame in terms of the individual perspective. And I think it’s important that, as the professor mentioned, this reframing process that takes place is critically important, because if you remember what happened during the battle over Proposition 209, what the opposition to affirmative action brilliantly did was co-opted the language of the civil rights movement and made it their own.
So therefore you found yourself in discussions, I think all of us did, whatever talk show we did, you know, Rob was on "Court TV", MSNBC, CNN. I was doing, you know, Fox News Channel, my favorite news channel for different reasons, but you found yourself in a debate arguing against the language that you know supports your argument, (Scattered Laughter), and it was this sort of cyclical debate that was going on, and used to leave … we’d leave the studio like scratching our head, like how in the heck, (Laughter), did this happen? That you could have someone like Ward Connelly quoting Martin Luther King and actually sounding legitimate?

So I think part of it is sort of reframing this issue in a way, but on a very broad and thematic basis. So now you’re seeing language that’s being used, preferences, quotas, reverse discrimination, merit, color blind, you know, that language has now been juxtaposed against the very real issue of equity in our country. And in closing, I just want to say that if you really … I think the beginnings of this, and I’m a big advocate for diversity, but I think the underlying tension in this country remains race. And I think race is the underlying motivation behind the attack on affirmative action.

Because if you look what happened at Post Bakke(?), there was extreme economic dislocation in the United States, the American economy began to change dramatically. All of a sudden you saw white males being threatened in their employment, and you saw an increase in white females, who are now used as a wedge on the affirmative action issue. You also began to see the rise of neo-conservatives, and not just in the Republican Party but in the Democratic Party too. You began to see the paralysis of the traditional civil rights coalition, which after the death of Doctor King was just sort of lost in the wilderness and I think we’re still sort of in this period of Exodus as we proceed.

And then you did see the creation of this unbelievable infrastructure. It was, you know, think tanks and foundations, media, sort of the GOP social strategy, the collapse of the progressive Democratic coalition, and the use of private capital to attack these policies. So you had wealthy whites on the right, who decided to open up their checkbook and said, we will fund all of this. And I think that infrastructure is the picture frame hook that’s holding up the frame. And I think what we’ve got to do now is build our own hook, create our own frame and change the picture inside of the frame, if we’re going to be able to change public policy. And I’ll leave it at that. (Applause)

Kimberlé Crenshaw:
Our last commentator is Makani Themba. Makani has worked for some time with media advocacy training for progressive groups through We Interrupt, and is now the executive director of the Practice Project, that is attempting to broaden this work to provide media training and other kind of expert support for groups that are attempting to deal with both the hook that the frame hangs on, as well as the frame itself. Makani.

Makani Themba, The Praxis Project:
Hi. (Applause) Well, so … when you’re on the caboose you have to be even more time conscious than everyone else, so I’m going to try to make it brief. Professor Gilliam talked a lot about the communications research, and I do want to sort of at least say and come out of the closet as a communications researcher myself, even though we do a lot of training work, we try to bridge this work around the research in action, which obviously for those people who know what practice means, that’s the biggest chunk of what that is.

For me personally, I just want to take 30 seconds to say I came into this issue as a college student. I was the Chair of the Black Students Alliance at UCLA in the Eighties, I was the first (Inaudible), you’re still there, (Scattered Laughter), I was the founding Chair of the Statewide Alliance of Black Students that was in California, which was basically organized as a fight back around affirmative action in the Seventies. Late … around Bakke and around some of these issues, so for me it’s sort of an interesting place to sort of sit here and think about and reflect on these struggles, and to sort of look at sort of the framing of it as well, and sort of think about the history, because it was a very violent and very intense history, that even got us to this place.

So sort of … I’m sort of acknowledge the ancestors and all of those people who aren’t here who were part of that process. Because this was not a battle that was simply unfolded in courtrooms or unfolded in press releases. And that essentially what this was about is about … I mean, the media and all of these things that we’re asking ourselves about and our analysis is about, how do we build a majority? And part of it is imagining what does that mean? Because a lot of our discussion is so much about being marginalized and being fringe, and how do we get in the discussion, it’s sort of like double-Dutch, how do we get into the discussion?

So I wanted to share a couple of things. One, I want to just say a minute about what I think a majority looks like, and what it has in common, and what we have to get to, which means that we have to talk about a multiplicity of media strategies to get us there. One, you need an organizing sector that has passion about what it does. That’s an important piece of how you build a majority. And that so there’s a part of your communications strategy that’s about talking to people who actually organize, who actually agree with you, to help them get on the same page.

As Kim talked about earlier, you know, what happens when people go on those things and haven’t talked to each other? Where’s the space for that? And one of the really disturbing trends in our own organizing media is that a lot of our organizations are giving up their independent media, and choosing to shout through the mainstream press. They’re giving up their newsletters, they’re giving up their magazines. A lot of people are shutting down progressive outlets, and so I’m really glad to hear about Northstar and the other stuff, but the trend is the opposite, and so part of what we have to also look at, without isolating these issues, is that there is a direct relationship to our ability to articulate issues to our lack of outlets to have the discussions among ourselves.

And I think, you know, wi
th FAIR, it’s been really important in fact, trying to do these studies, trying to do this work, more people should subscribe to their magazine. (Laughs) Just like give it a plug, (Scattered Laughter), and those kinds … and we really have to support that. Having said that, I want to sort of throw out as sort of my quick closing, something that’s a bit contrary to everything else you’ve heard.

One, I actually believe, and I’m not the only person, that if you actually apply Eingar(?) theory, which I am very much in support of, which Professor Gilliam talked about, which was the episodic and the thematic work, and actually the book that he’s talking about is called "Is Anyone Responsible?", which I would highly recommend. You read, by Eingar, which was put out in 1991 that basically lays up his framework. That the civil rights language actually does damage to the work of affirmative action. That the civil rights framework is actually counter to what we want to say. And that it should be no surprise that a Ward Connelly can sit down and say all the things that King said, and shoot us. And I’ll tell you why.

Most of the language around the classic civil rights framework, and I mean the classic, not the arguments, because there was a lot of arguments about how they were going to frame that. Who they were going to talk to, how they were going to do it. And that most of what we get, because it’s, you know, we don’t have time to look at the history is to … is the stuff that they ended up putting out there. And I know, for me, I wasn’t … I actually worked as a media director for Southern Christian Leadership Conference in Los Angeles, and it was very interesting, it was my first job out of college, you know, they hired me because I was a student activist and it was basically the hire a student job, (Laughs), because she was about to like lose her rent and get evicted. (Scattered Laughter) She was (Inaudible).

And what was interesting to me, and this is how I started in sort of the media organizing work to get paid, was talking to people and hearing the stories about the fight over how civil rights was framed. That was fascinating to me, and there was a … there actually is a book where I actually wrote a chapter on this … state of the race stuff that Ron Daniels(?) put out. But interviewing people and looking at this framework was that there was a huge fight about whether or not to talk about institutional racism when we had the opportunity in the Sixties to lay it out that way. And that battle was lost, in the organizing rooms. In the small places, in the retreats and the places where people did the strategic work.

And it was a huge fight, and the idea was to make civil rights cuddly and cute, and to identify these individual stories of people who were wrong, so instead of the Jesse Helms with the white hand getting the job rejection, 20 years before it was the black hand with the same … it was just the same thing. No talking about systems, no helping people to make that framework right at the point where they most got the fact that the structural institutions were at fault. And that if you look at an analogous piece of this, and I’m going to sort of close with this, because you want to get to the videos, is that if you look at how people understood poverty in the context of the Depression.

That it was one of the first times that people actually understood that folks weren’t poor because they were lazy or stupid, but that there were larger economic systems at play, that dislocated people. And you can see that in communities when a plant shuts down. Where people don’t go, oh, you’re so lazy, you … you’re not working. They go, man, this plant shut down. We understand, we’re going to get together, we’re going to try to figure out how to deal with this. And that the moment in the Fifties and the Sixties was a moment where actually the racism was visible enough as a machine, not as individual failings, not as people in sheets, but that the structure and the machine where there was an opportunity to put forward discourse around how to fix the machine.

And so, what’s happening is, is that we actually are inheriting the worst of the dialogue, the worst of the language, and attempting to use that in understanding why it didn’t work, when it was really accommodationist language to begin with. And we’re using accommodationist language in a place where nobody wants to accommodate. So I think the question now is how do we get back to the language of structure? And I’ll close with this.

It’s that, part of what we have to do is we have to stop telling portrait stories and we have to tell landscape stories. As Professor Gilliam talked about, backing the camera lens up, we have lots of structural stories about racism that do not have, you know, sort of people just sort of telling their sad individual stories. There are stories about systems, with regard to employment. And education most especially there are numbers of stories about how those … how that machinery works, and part of it is that we need to not counter the individual stories, we need to tell our own stories. And as we … we’ll talk more about this later, but I just kind of wanted to throw that out there as a counter and hope that we’ll get a chance to mix it up later. (Applause)

Kimberlé Crenshaw:
So, what we’ve heard so far is about the structure of the representation. We’ve heard about the infrastructure of the advocate on the other side. We’ve heard about framing, and we’ve heard about specific ways in which the framing of affirmative action actually reflects some of the losses in framing civil rights in the first place. Now the project is to take the language and the ideas that have been generated in this panel and actually observe now the media representation and see if we can trace these things, apply some of these ideas, and use it as a way of transitioning to a discussion of meaningful intervention.

Before we do that, I’d like to first thank the opening panel. (Applause) We’re going to start the videotape now, switch our panelists. Since we’re running a bit behind, I’m just going to start the videotape. If you need to take a quick bathroom break, please slip out and come back in. We will have a break after the videotape, but we want to get the videotape started so we can have some time to discuss the images that you’re seeing. So we’re going to begin the tape, with a message from our President. (Scattered Laughter)
(Background Conversation) / (Brief gap on tape.) / (Video plays, did not transcribe.)

Kimberlé Crenshaw:

Thank you. So that’s the first section of the video. It is both about objective news reporting and obviously questions about how distinguished you can … what kind of distinctions you can draw between an objective news reporting and that little bit of O’Reilly that we threw in there to gussy it up a little bit. (Laughs) So I want to ask first our invited roundtable participants for this section, to explain for us like we’re four years old, what did you see in that so-called objective news reporting? What frameworks did you see in President Bush’s initial position on affirmative action? How should we read this critically, using some of the ideas that we talked about earlier?

Eva Paterson(?) joins us from San Francisco, a veteran of the Prop 209, 187 and all other kinds of movements that California is known for, and a member of the Lawyers Committee on Civil Rights. Rasheda Kilpatrick(?), a student at UCLA, a member of SCARE, Student Coalition Against Resegregating Education, and ran the public relations publicity arm of that organization. And Rob Tarver, a co-founder of the Northstar Network, legal correspondent at MSNBC, legal commentator on all the other news networks. So I’d like to welcome them, to get us started, a
nd then our other panelists participants, tell us what you see, chime in as you feel. (Applause)
(Background Conversation) / (People not always identified.)

Walter Fields:
I’m a Californian and I feel wild after seeing President Bush, (Laughter), and I’m going to try to be calm and gentle(?), objective. (Laughter) When you … you’ve seen all the analysis explaining, it’s hard to be calm, you’ve seen all the analysis talking about how Bush got into various institutions of higher education through straight out preferences. He was the son of people who went to Yale who got the gentleman’s C. He got ahead on straight out preferences, and then he gets up and starts talking about what the Michigan school is doing as preferences. There’s an excellent article you need to read by Tim White(?), called "White (Inaudible) and Racial Preferences", I can get that to Kim.

He really breaks down what goes on at Michigan. If you … there are various points you can get if you … and this also segues into what O’Reilly was saying, if you’re black or a person of color, you get a certain amount of points. If you’re poor you get a certain amount of points. But if you’re black and poor, you only get the 20 points, you can’t get 40. So whites get a preference if they’re poor. If you’re from a rural area, you get a certain number of points. Most of those people in the rural areas are white. If you come from a very difficult school or a prep school, you get another set of points. Most of those schools at this point are not diverse. If you take AP courses, you get another certain set of points.

In California, we found that there were 800 kids who did not get into UC who were black and brown who had perfect four point averages. Let me repeat that. Eight hundred black and brown kids in California who did not get into Understand Berkeley with perfect four point averages, because their schools offered limited AP courses. And also they weren’t getting the kind of advice from counselors that got them into the AP classes. So if you had the same situation in Michigan, and I have no reason to think that isn’t the case, you’re going to have a disproportionate number of people getting the 20 extra points. Wise(?) made the calculation that if you’re white, you have a chance of getting 58 extra points. If you’re African-American or Latino, the maximum amount of points you’re probably going to get are 20.

So who gets the preferences? So Bush just stood up and … my mother told me not to call somebody a liar, (Scattered Laughter), she said to talk about them as story tellers, so if we use that frame, he is a wonderful story teller. (Scattered Laughter) He also talked about quotas. Quotas have been illegal since Bakke, but that’s a hot button word. People hate that word, so I’m sure he was trained to say what he had to say. You notice he left right away. You know that man could not answer one question, (Laughter), about this, and I’m trying to have common ground and have a Christian heart, (Laughter), but it’s very difficult.

If I may just have an aside, if the Michigan case, and this makes me want to cry, if the Michigan case goes down as projected, fewer black and brown people will go to school. In California over the six years that we’ve had no affirmative action, 30 thousand … 30 thousand fewer black and brown kids have gone to all the UC’s. The big lie we were told by Ward Connelly was, well, they don’t get into Berkeley, but there’ll be a place for them in other UC’s. That is a lie. Thirty thousand fewer black and brown kids at the UC’s. Now, what happens? The people that would have gone to UC’s are going to go to community colleges, and that’s going to bump people who used to go to community colleges to other colleges.

Have you been following the stories on the war? When they’re talking about the people who were killed. Well, he went into the Army because he couldn’t find a job. How many people of color are in the Army dying in the desert because they can’t get an education? There are life and death consequences to this man standing up and saying what he’s saying. Shame on him. He talks about making the college more affordable. He has just given enormous tax breaks that has run up the most massive deficit in American history, now we’re going to have an incredibly expensive war. In California, they’re laying off teachers because there’s not enough money coming from the federal government to have education for people. So he’s just up there lying. His policies are in a place that’s going to hurt the kind of diversity that we want.

What else … oh, okay. O’Reilly. They just love going after Jesse Jackson. I ran into one of Jesse Jackson’s advisors when I was having breakfast a couple of days ago in Berkeley, and they said since he went after Bush for the 2000 election, let us not forget that, they’ve just been all over Jackson. Right before Jackson was going to lead that rally, they busted him for having the child out of wedlock, so he’s a particularly good target. Do you see how they mixed in reparations and preferences? People don’t like reparations, you lump it all in together using that frame that the professor from UCLA talked about, they’re not even hearing, they’ve already, oh, reparations, preferences, we hate that.

Let’s see. Reparations were given to Japanese-Americans, we don’t seem to see any outbreak of increased hatred towards them. Why is that going to happen with African-American? And you know, people are mad at black people anyway, I’d rather have them mad at me, (Laughter), with some money in my pocket. (Laughter) You know what I’m saying? Didn’t that little dig … I can’t … we were all kind of laughing when he said, blacks are as competent, generally speaking, (Laughter), that was just so deep and that kind of fed into what …

?: I don’t know about this guy. (Laughter)

Walter Fields:
It fed into what Al Ross is talking about; there’s an undercurrent of this genetic eugenicist nonsense that still is around in American society. He also talked about discipline. This is another hot button, racist term. Well, those lazy, lazy black people. Somebody made a point that, it was funny to me, they said, you know, blacks and Latinos just can’t catch a break. Either we’re on welfare and just lazy, or we want to take everybody’s jobs. (Laughter) You know, which is it? Let’s see. Lehr(?) talked about preferences. You notice that NBC or CBS had those poster children, those … and the Center for Individual Rights cherry picked those plaintiffs. The hard working white mother, and I’m sure she is, but there are some hard working black women, you know, who want to get to school.

But they cherry picked those plaintiffs. And they talk … they used the hot button word, less qualified minority. They always use that term. Poor Condoleeza Rice, poor thing, (Scattered Laughter), she’s just … she just is caught up in a horrible place. But she basically did not speak the truth. She said that the President should be silent on the law. You heard Bush at the beginning saying that the Michigan plan offended the Constitution. I didn’t … did he go to law school? (Laughter) I don’t seem to remember that.

Then the last point I would make is, and it goes back to framing. The last poll showed that whites don’t like preferences. It’s all in how you frame it. By a small … by a small majority, 52 percent of the American people still favor affirmative action. It’s how you frame it. So we have a lot to do, and I’m so glad … I’m just so glad you’ve put this conference together, because it’s really getting my mind going. And Al Ross and Lee are exactly correct, we’ve got to be strategic. We’re as smart as they are, we’re smarter than they are, but we have to be strategic, and this gathering is so very important, so thank you for doing this. That’s it. (Applause)

Kimberlé Crenshaw: Rasheeda, you want to offer anything now?

RK: Yeah. I think the …
(Background Conversation)
RK: I think my analysis comes from more of w
hat I didn’t see, more than what we saw. Especially seeing (Inaudible) and Gratz on the TV. These are people who, you know, have not been … they’re not in these schools. You know, we’re talking about this debate about what’s going on with affirmative action and how it’s going to affect our schools, but no one is talking to the students who are actually in the schools. And someone made a point yesterday that the people who have the most to lose are marginalized in this debate. We’re not talked to at all. I go to UCLA Law School. The year before me there were two black people in the class, my class I’m one of five black people in the class, and that affects greatly what our education looks like, how we’re able to go through … how we’re able to get a good education.

And not only talking Mister Bush, also on these he talk … I mean, all these different things that they’re talking about is that they’re talking about us in theories(?), and no one is coming to us and saying, you know, how does this affect our schools? How does this affect our people? And so that was one of the biggest things. I wanted to say, someone interview me! (Laughter) You know what I’m saying? I know about this. And so that was my biggest thing. I was like upset. I saw Greta(?) on so many different things. I was like, I’m sick of seeing her, you know? Someone needs to talk to me about what’s going on, and the different factors, and I think we’re going to see a little bit more and I can tell you too a bit about how we decided, SCARE, how we wanted to counter this.

And so we had a press conference that talked to people about who actually the students are. Again, a lot of people talked about black and white, and they kind of mention Latinos and Hispanic when they want to mention them, and they mention Asians even less, but it does affect all minorities and all minority students, and so in our press conference that we held, we made sure that we had black students, Latino students, Asian students, and everyone else that were up there, and giving our different viewpoints and how it affects us and how it affects our schools. So that was one of the main thing that we wanted to make sure that we become a part of this debate, because it affects all of us. And yeah, and to be interviewed as well. (Laughs) (Applause)
Kimberlé Crenshaw: Rob?

Rob Tarver: I do have a blood pressure problem when I watch Mister Bush. Nineteen-ninety-seven, I appeared on BET in a debate with Professor Lino Growlia(?), (Reaction from audience) from the University of Texas Law School.

Kimberlé Crenshaw: Ouch.

Rob Tarver: And of course, for those of you who don’t know him, this is a man who’s so conservative that Ronald Reagan backed away from his appointment, (Laughter), to the Fifth Circuit Court. You know, that’s scary in and of itself. But we were talking about the merits of affirmative action and preferences, as he termed them, and we … I had prepared for this highly sophisticated, intellectual debate. And when we got there, I was so surprised because Professor Growlia spoke in laymen’s terms. And one thing really brought the whole message home.

At one point, as I argued about the law, he turned to me and said, but Rob … Rob. (Scattered Laughter) Since we’re such good friends. (Laughter) Rob, the Civil Rights Act of 1964 ended all of that, as it relates to discrimination. And I said, that is so ridiculous, to myself, and aloud. But it points out something that the speakers have been saying all along today, and that is that conservatives understand that along with a sophisticated infrastructure, must go an unsophisticated message. And that’s what you heard from George Bush. And just very briefly, because the first speaker here pointed out most of the things I was going to point out.

You know, this is basic level one framing. Who can argue with the concept of justice? Who can argue that people who do well with their grades should get the opportunity? If you believe that that’s what’s going on. And that’s what the framework is all about. The second thing that he does wonderfully is that he acknowledges that there’s still discrimination. Because that of course is always the first argument. Well, wait a minute, Mister President, are you trying to say that discrimination doesn’t exist? No, we know it’s there. But doggone it, we can’t compound it by two wrongs. And so it almost takes away or at least undercuts the natural response to that statement.

And then, number three, he invokes the Q word, quotas, and everybody is so afraid of quotas, and quite frankly, you know, in my own humble legal opinion, I don’t know why we ever ran away from quotas, but that’s another story. But everyone’s afraid of quotas. You know, you mention quotas and it is done with. Now, why does he do that? It’s because the President knows, as does Mister O’Reilly, that Americans by and large don’t want to think … thinking is difficult, thinking is hard, (Pounding table)
(New Tape)
Rob Tarver:… tell us how to think, in a way that matches up with the frames that you heard about. And if it makes sense, we’ll buy into it. And that’s what they’ve done so masterfully, and dangerously, I should also say. As I said, it’s about giving an unsophisticated message. Because television and media is about the sound bite. It is not about intellectualizing. It is more about feeling than thinking. And they’ve understood this and they’ve mastered it.

I was talking to a friend of mine at MSNBC and they recently removed Phil Donahue, who was an aging host and replaced him with a line up that’s downright frightening. I mean, they took Joe Scarborough(?), a Congressman from Florida who was involved in the scandal where they found a dead woman in his office. Strangely, no one followed that up. They hired … who else did they hire?

Kimberlé Crenshaw: Michael (Inaudible).

Rob Tarver:
Michael Savage from "Savage Nation". You know, just when you thought it couldn’t get any worse. And when I talked to my friend about this, she said, look, Rob, here’s the story. Advocacy cable networks understand that these ideologues have fervor. They have passion. They feel for what they want to talk about. So all the progressives are out watching "Friends" and all kinds of other little comedies and things like that, because they think too much. And I said, you know, that’s really funny, but there is some kernel of truth to that. There’s such a fervor pitch and you see it on people like O’Reilly, who love to whip people up and get them crazy. And he plays to a specific audience and the audience buys into that.

There was … when I saw the Gruther(?) clip, you know, the one thing that struck me, and this is the one thing the media fails to do in their follow up, how does she get to refer to the college spot as her slot? (Response from audience.) And isn’t there an inherent notion of entitlement when you refer to it as your slot? I mean, how did it get to be that way? It goes back to what the first speaker said, I’m sorry, I forgot your name. Eva said, and it’s made very clear in the Tim Wise article, which you can find on the Northstar Network at, (Laughter), It is that whites swim in a sea of privilege, he said, much like fish are in water, you talk to fish about the water they’re around, they can’t tell you that it’s water, but they just know they’re in it and they’ve been in it all their lives. (Laughter)

And that is the notion that we have to begin to deal with. Instead of talking about defending affirmative action, maybe we should be talking about combatting white preferences. It’s time for an entirely new framework that takes into account what exactly is happening. And the last thing, being marginalized by the media, we are dealing with, in this day and age, a co-opted media, where we don’t have a voice. And we are specifically excluded, and it’s really, for those of you who haven’t been inside a media organization, it is really … it’s fascinat
ing the way that these things work.

You have a group of people who are producers and junior level producers, who determine who America is going to see, and who America is going to hear from. And those people will continue to select the people that they either are most comfortable with or fit their own personal preference and idea of what they believe is the correct viewpoint. And so, when you have a news organization like Fox, who dedicates itself to conservatism, when you have an MSNBC who now is competing with Fox, and saying, we can out-conservative the conservatives, that’s what you’re going to get, and you are never going to get another voice, except someone who’s set up there as a foil, meant to fail, meant to get beaten on and meant to be destroyed.

So with that, I will conclude my remarks, and I just … I think it’s fascinating, you really have to begin to break down the sense of entitlement, the sense of privilege, and all that goes along with these statements. (Applause)

Kimberlé Crenshaw:
So, you all have helped us break down somewhat what’s going on here, and we want to move now to looking at what’s going on in the actual advocacy. And as a transition to that, I wanted to pick up something that Rob said, and contrast it to what progressive and liberals are at least being told by the researchers, the pollsters and the focus group people. You mentioned that what’s so interesting about conservatives is they have passion. They make for good television, you really believe that they believe what they say. They’re offering a clear framework.

At one point, as you recall, we used to have debates with our producers about why it was the case that all the African-Americans that they had on staff, as it were, at least half if not more were neo-conservatives, when that doesn’t reflect any real instance of that percentage in the population. And they would say, well, it makes for interesting TV, it’s the man bites dog phenomenon, and it was the same with the women. Most of the women that we were dealing with, Ann Coulter(?), to name one, were conservatives, the same kind of idea. So it was both the idea that they make great TV, they’re really passionate, they go against the grain, they really challenge what people assume.

When we get advice, we’re kind of told the opposite. Be calm. Don’t go against the grain. Try to figure out a way to frame your message in a way that triggers common sense responses. Oh, I know that story. You know? Be familiar with them. And don’t make any waves. So, are … is it that our advice is wrong? Or is this a reflection of the tilted terrain upon which we are dealing? Is it the case that we just can’t get out there and act up like some of our colleagues do, (Laughs), and really show how we feel when we hear President Bush say what he says? Is it just that we can’t do it, or is it that people haven’t thought yet about our ability to meet that kind of advocacy with an advocacy on the other side? Since I started it with you, Rob, I’ll go to you and then go to Makani.

Rob Tarver:
I think it’s a combination of both. I think that, number one, we have not developed the effective strategy that says that we have been … well, number one, that acknowledges that we have been forced into a defensive posture. I mean, through a lot of the rhetoric that we’ve heard, the turning around, that it began way back with William Bradford Reynolds(?) of this color blindness argument, and probably even before that, we now are defending the idea that we feel that this thing should happen. And what it actually is, it is … we have bought into the lack of context when we talk about affirmative action. There is a history here. There is an incredible history of hundreds of years that has brought us to this point.

There was a reason why we arrived here. And there’s also a consistent and present history of problems that have not been eradicated. And we don’t get to talk about those things, and the problem is that being in context allows you then to be much more free with what you’re talking about. Now, the problem is, when we go on these shows, in this different media, we’re dealing with their context, and their context is simply, as we said, color blindness. Start from the color blind line and tell me why we need this particular plan? And it’s difficult to do, very difficult.

Kimberlé Crenshaw: Makani.

Makani Themba:
Yeah, this is a really complicated question for a lot of reasons, and I’m not, you know, because of time we won’t get all into it, but one, this is also a 400 year old issue. The fact that colored people are scary when loud did not start with television. (Laughter) And so that the idea of us trying to tame ourselves and be in this context, that’s a much larger question around how racism, not race, and we start to kind of confuse the two. Racism operates with media. I think the other thing that people forget is who the audience … we keep thinking that we’re part of this audience that they’re talking about. And one of the things that I always tell people when they start organizing is, apply for the ad portfolio, for whatever media outlet you want to work with, get the thing that they tell you who they’re selling the ads to.

And that tells you who they’re paying attention to. And I swear, you know, I have never seen a single ad packet that has talked about poor people ever watching their show. Everybody who watches their show makes 60 thousand dollars a year or more, and I’m like, I know that’s not true. Jerry Springer? I know that’s not true. (Laughter) But what’s interesting is that what we’re … what we fail to realize when we go on these shows or go in these contexts, I mean beyond all the other things that people talk about, is that their sense of the real audience, regardless of whoever watches, are mostly white people, soccer moms, soccer dads, who make quite a bit of money, who own their own homes, who have certain kinds of political beliefs, and that’s who they’re speaking to.

And so what we do is we also then try to be calm, wear our suits, you know, we don’t go on to MSNBC with our dashiki’s on or anything like that, we pull ourselves together, we pull our hair back, we do all the things that we’re supposed to do, and there’s a reason, we have to understand that context and understand that audience. But the other thing too is that, and once we’re in there, I mean once we do everything we’re supposed to do to our hair, our jewelry, our … you know, because they tell you, don’t wear the big earrings, you know, all the things that they tell you to do, (Scattered Laughter), once we get in there … yeah, keep it down, you know? (Overlap)
(Unmiked audience comment – Inaudible)

Makani Themba:
Pronounce the P’s, right? (Laughter) Don’t drop the D. (Laughter) And never, never T-H and F, and mix them up. (Laughter) But I think just … you know, not to get too into it, I think the other thing is, in terms of what we say, we don’t really think about what the arguments are. And I think the thing that struck me about the clips mostly when I was watching them last night, and I thought about this, and I’ve been thinking about this a lot, if even those of us who have the facts, the information, like Eva just ran so well, if we … there’s some questions that we fail to answer. And the number one question is, why does the number of students drop when these policies are put in place? And see, that’s a fundamental problem, because we’re not doing a good job of explaining how the machine works.
(Chorus of Assent)

Makani Themba:
All we say is, well, you know, if you guys do this, black folk ain’t going to make it. And then what does that … and what we’re saying, because we never tell the story about how the machine drops people out …
(Chorus of Assent)

Makani Themba: … is that we say, oh you know, because us poor folks, we can’t really … we basically are echoing their argument. And I think that part of … what’s goo
d about his session and hopefully the work, the take home work is, taking the information that we know, and mapping it back to the real underlying questions that people have, even black people in barbershops have, not just white folks who are soccer moms, but black people in barbershops and sitting there, going, well, why do these numbers drop? Are we really dumb? And the last thing I’ll say is, Ramona Edwin(?) tells this great story, which I think illustrates this, about doing a press conference accounting "The Bell Curve".

And so they did this press conference at the Press Club, they had all these Nobel Prize winning biologists, and geneticists and everybody, just everybody you can think of, to counter this frame. Because the underlying frame is about racism and intelligence, as Al laid out. That’s what … the story. So she had everybody lined up, we’re talking everybody. And the only thing that the reporters would ask is, well, could it be true? Well, could it … if we did it, could it really be true? Like is there any way this could be true? Nothing … and they weren’t interested in countering what these psychologists who were not trained in genetics had anything to say.

So I think that in some ways we’re … we have to understand, this is a long range argument, that there is no one show that’s going to blow out 400 years of racist assumptions out of the water, and that we have to connect the dots and take it back, and we also have to recognize it in terms of our opponents. Right now the Heritage Foundation web site is the number one source for reporters right now, (Scattered Laughter), and that … and some people know that my husband is with investigative reporters and editors, and he runs the computer assisted reporting thing, and so their … Heritage has been building bridges, they’ve been doing the stuff, they’re the number one source for social science information for reporters right now.

And they have been able to act like they’re not part of the right any more on a certain level. And I think that part of what has happened over 40 and 50 years of very hard work on their part, and not … and they had to do hard work even with racism as an assumption, they still had to work at it, to get to this place. That … to say that they are now … they normalized it, these things are normalized, so we have our work cut out.

Kimberlé Crenshaw:
Um-Hmm. Thank you, Makani. Gerald(?).

Gerald Torres:
Excuse me. One of the oppositions in that … in the pieces that we saw that I thought was really critical and I walked up for a brief moment when you were talking at the end so I don’t know whether you mentioned this, right, but the fundamental opposition was between blacks and Americans, right? And that was said at least three times, in those clips. Americans think this, blacks think this. If Americans have to pay reparations to blacks, right? And so I mean the question of the … kind of the fundamental opposition to … between blacks and American is, who is part of the polity about which we must be concerned? You’re exactly right about passion being part of the frame that defines us, so that when we are passionate, right, it helps them draw the picture they already believe about us, right?

So that by making those kinds of oppositions, the question really devolves down to, who deserves what? And that’s what race and intelligence and racism and intelligence is purporting to answer, right? Just a brief story about the ten percent plan and with all the caveats that I made yesterday, the only way we were able to sell that, and we only won by one vote … the only way we were able to sell that was by telling … getting representatives, said, look, you have an obligation, under Texas(?), there’s a Constitutional obligation to equalize educational opportunity K through 12. Okay, they haven’t reached it, there’s still about 28 to one difference between the top and bottom school funding.

Right, but we had to say, okay, look, what we want you to do is to go to your district and go to that high school, choose any high school you want, right, but not one of the ones that normally feeds students to UT, and go into those homes and tell those parents, because you have not given an opportunity to these kids, they can’t go to college. Even though they’ve done everything we’ve asked them to do. Right? I’m not going to do it. You do it. Right? And we had to say that in public, right? You had to say that in public, so that the frame of what’s fair, right, got shifted. And that part of the critical is figuring out how to shift that frame so that the issue of what’s fair, right, becomes defined greater than the Constitutionalization of certain criteria for entrance, which is what the cases are about.

Kimberlé Crenshaw:
Thanks, Gerald. Let me try to pull out some of the themes that are now being connected, that we heard earlier. And that we will see in the rest of the clips. Makani just made a very, very useful point about connecting our responses to the attacks, so it is one thing to say that these programs will be devastating, but that doesn’t really challenge, as she pointed out, why people of color drop out of the machine. Well, you’ll see a few clips which we want to present, in terms of what’s a good response and what’s a bad response. One of the things that people do and we think that they’re told to do that is to meet a hard argument with a different argument, not one that responds to the argument.

So you’ll see a lot of people, when they’re confronted with, you know, people should just work harder or do better on the test, simply responding, well, diversity is a good thing, without responding, (Laughs), directly to where that challenge is really coming from, which is not about diversity per se, but it’s about whether these people belong here, right? So there’s several clips that go in that direction. Professor Gilliam talked about episodic versus thematic, and what difference it makes whether your frame is about an episode or about a theme. And I think we saw pretty clearly with the tape with Gruther and Gratz(?), that that was an episodic representation of the problem, not a thematic one. And what’s key about that is when you go with the episodic frame, it suggests the solutions for the problem rest in the individuals, not in a broader systematic kind of intervention or approach.

So, all of these little choices that we talked about, like who gets to speak, whether, as Makani said, we’re looking at a portrait or we’re looking at a landscape. Are we looking at the cows grazing in the grass, (Laughs), are we looking at the cows grazing in the grass with pollution in the background? All that makes a difference ultimately in how people think we should respond to the problem. So as long as it’s an individual problem, which is what I think these objective representations end up trying to represent, then the sense is that this really doesn’t require a broader systematic institutional response. So, in their terms, this might appear, as Jeanine said yesterday, to be a balanced news report. You got on one hand, you know, Gruther saying that was my slot, on the other hand you have the President saying, well, you know, you have to take that slot because otherwise, (Laughs), we wouldn’t have enough people of color in the university.

That’s not a balanced approach to the problem. It’s one that is formally balanced but not at all substantively balanced, and I think we can see a lot of the operation of the framing that Professor Gilliam was talking about and that our panelists put on the table for us this morning. Well, now the clips turn to advocacy, not simply what Peter Jennings has to say, but what some of these groups that Al was talking about earlier today have to say, and how it triggers the rest of the story. I used … I grew up listening to conservative radio, and there was this radio host who had this weekly commentary called "And Now the Rest of the Story". (Laughs) I’m sure some of you prob
ably heard it.
(Unmiked responses – Inaudible)

Kimberlé Crenshaw:
Paul Harvey. And what I think is interesting about what we’re seeing and what we’ve heard is that, like President Bush, he really didn’t have to say a lot on any of the themes. He only had to trigger it, he only had to prime. So all he had to do is talk about reverse discrimination and we have their whole story, and we imagine people like Jennifer Gratz because we’ve been told this narrative again and again and again. So, the way some of this advocacy works is that people are just pushing all of the buttons, and the public can read back in to what they’re saying, so they don’t have to use up all their time going through line and verse, (Laughs), what their argument is, they just do the familiar things.

Now, see what the buttons are, see if you can figure out what’s the rest of the story, when they say these things, what is it that they’re invoking? What’s being primed here, and how do the symbols, the stereotypes, the pre-existing narratives do the work for them, so they don’t really have to do that much to make the argument against affirmative action. Okay, roll the tape, Mark(?).
(Video being played – did not transcribe.)

– top –

B) Afternoon Session

Eric Alterman:
…talking earlier that it’s hard to believe that MSNBC could have gotten even worse than when we were on it. But it’s gotten much worse. But you probably could have said that ten times in the past five years. I’m going to be very quick, because I don’t want to talk very long. I want to sort of see if I could be of any use to your specific questions. But, just sitting here, I spent a lot of time in academia, but I haven’t been in it in a while. I did the course work for my doctorate in 1991 to ’93, and then I just spent the last ten years writing the dissertation. So I’ve been sort of in and out of academia that whole time, but, not really in it. And just listening to the 15 minutes I heard, while you were finishing up in the last conference, it reminded me of just how different the reference points are, how the distance between the discussion that takes place in a room like this and the discussion that takes place in the media. And even in the media behind the scenes. So, I want to answer your questions, best I can, about what that means. I’ll give you two minutes on sort of what I see as the lay of the land, relevant to your concerns. And, you might find it shocking. You might even find that the bad news, the good news is bad news, but, there’s not much good news, and even, you could argue that the good news is bad news. But, here’s the way I see it, and I think I’m right. I think this is accurate. I don’t think you get much argument except from people who have a very sort of concertive ideological viewpoint of the whole thing. I don’t think that people who work at the New York Times necessarily would disagree with what I’m saying, they would consider it accurate, too. And you’ll find it probably objectionable, but, like I said, I think I’m right.

Basically, everyone in the world, until I published my book, about a month ago, if you discuss the media and the mainstream media, you had to grant the words ‘liberal media.’ That the media are liberal. And, that’s why conservatives had a tougher time of it than liberals did. Now, I think I’ve actually, and they’re expected to, but I think I’ve made some progress in beginning to get people to rethink that. But, one thing I do grant, in the book, is that most elite journalists, when you say media, you have to know what media you’re talking about, because the media are very large, and you could mean Page Six in the New York Post, or the National Enquirer, or you could mean the editorial board of the New York Times. I more mean the Editorial Board of the New York Times.

One point I do grant, right off, when I talk about it, and in the book, is that most elite journalists are social liberals. Most elite journalists, kind of people I’m friends with. They all support abortion. They all support affirmative action. They all support gun control. They all support gay marriage. They’re economically more conservative than the rest of the country, but they’re socially more liberal. Now, they know they’re socially more liberal, and so, because, A, they’re professionals, and B, because there’s an enormous right wing structure out there ready to pounce on them, if they weight an issue towards their own personal biases, they tend to compensate to the point of overcompensation for what they perceive as their own biases. So, on reporting on these issues, affirmative action, and I don’t profess to be an expert in the issue affirmative action, but affirmative action, again, abortion, gun control, prayer in the schools, gay marriage, campaign finance you could also add, those issues end up being reported, I would say, pretty much down the middle if not slightly beneficially to the right, because reporters are bending over so far backwards to be fair to the point of view that they don’t share, in fact, probably don’t know anybody who shares. I mean, I don’t know that I’ve ever had dinner in my house with someone who didn’t support abortion. And affirmative action. And gay marriage. Now, that’s the opposite on economic views. Economic views, they are more conservative, and they’re pushed in a more conservative direction. So my argument is basically that the media are conservative on economic issues, and basically down the middle as far as the debate goes on social issues. Now, one thin you need to understand, I will tell you this about affirmative action, this is one thing I know, even though it’s not really about affirmative action, it’s about the media, (Dropout) view between academia and the media, I must say, I think, and this is my perception, and I’m sure you’ll find it surprising, I think there’s almost nothing that’s more important to the people who run these organizations than affirmative action. That, whenever, I mean, I work at The Nation, so, it’s a different situation, but, the New York Times and the Washington Post are no different. The people who run these organizations are enormously committed to diversity. Their diversity figures are really important to them, and they make an enormous effort to do it. They know that it’s not proper for the people who tell the story of the country to tell a country that it’s racially and sexually diverse, to tell, for just one group of people to be deciding what that story is. And, they also know it’s bad business, that they won’t be able to do it effectively, and they won’t be able to speak to these people as consumers, and so they make an enormous effort to hire and promote, and bring in people of color, with very mixed success. They don’t do it very well. And, it provide enormous fodder for the right, the mistakes that they make. Part of the problem is the, this is just amateur theorizing, now, I would guess, or as I understand it, part of the problem is the talent pool, in the following fashion: that because so many people of color are first generation college graduates, just like Jews were in the 1920s and ’30s, their inclination and their parents’ desires and so forth push them into areas where they’re going to make a good living. Where they’re going to be doctors or lawyers or business men. Indian Chiefs. Journalists and authors, and people in the media, they’re considerably less money than doctors and lawyers, a lot less. If you’re an incredibly successful investment banker, I have friends who make, I don’t even know, but I know I have friends who make between $5 and $10 million a year. And, they’re not any smarter than I am. They went into a business where, if you’re very successful, you make $5 or $10 million a year. It’s natural. It’s a given. The really successful investment bankers make $50, 60 million a year. The top, say, half a
dozen. In journalism, you can’t, the Editor of the New York Times, the Editor in Chief probably doesn’t make more than $400,000 or $500,000 a year. Maybe he has some stock that, when he retires, he’ll get a few million, but, it’s not real money compared to what you can make in business, or as a $600, $700 an hour lawyer. So, it seems to me that this is the quandary I want to face to you with, and it’s complicated. But, that on the political issues, they basically don’t agree with your analysis, but they basically agree with the direction you want to go in. On the sort of behind the scenes professional stuff, I don’t know what they can do to make more of an effort to bring in people of color. I’m talking specifically now on a sort of a statistical way. I’m not talking about people with, how can I say this, I’m not talking about diversity of view point, I’m talking about diversity, just of perception of skin color. And it’s something that they struggle with, and they try really hard to address on both counts. When Kim and I worked at MSNBC, there was a definite perception that there were two groups that they wanted to bring in. They were black people, and conservatives. That’s what the affirmative action was all about at MSNBC. It was very strong, and they ended up with all these, a bunch of black conservatives and also female conservatives. So, we had all these blonde and black conservatives. At MSNBC, that we probably had a significant portion of that population on the air. In fact, I used to joke that, I heard that Quincy Jones was married to Peggy Lipton, is that true? Anybody know that? Peggy Lipton used to be the woman on the Mod Squad, the blonde? And I said, if they had a daughter who was conservative, she would get a lifetime contract on MSNBC, because she’d be a black blonde conservative. (Laughter) And that’s what they wanted more than anything. So, we can talk about it for a few minutes, but I guess my point is, is that politically, it’s complicated and there’s a real problem in terms of how these issues are reported. And I have to say that I think that the discussion that takes place here is not a discussion that most people in the mainstream media could even enter, that they just don’t see it that way. They’re beginning from different assumptions. But on the question of bringing people in, and new voices, they’re always looking for new voices. They’re always looking for new faces. They’re always looking for exciting people who are articulate. And they want people of color as much as they want anything. So I think there’s a real opportunity there, but it’s complicated by the first thing that I said. There’s two or three people in the world, Kimberly(?) is almost one. Kimberly’s(?) very close to being one, but the idea would be Corneau West(?). Who can do both at one time. He can speak in both languages at the same time, without compromising himself. That’s an incredible talent, very few people have that talent. But, it seems to me, there needs to be, I agree that you can’t depend only on an inside strategy, but an outside strategy without an inside strategy is, there isn’t going to be anybody in the room when the times comes to do the deal. And so you need to think about how to exploit the opportunity, and at the same time, address the problem. Thank you. (Applause)

Kimberlé Crenshaw:
I want to open it up for questions for Eric. Both because Eric has to go, and Cheryl’s going to move us into our exercise. I guess I’ll start by asking to Eric, one is about basically taking affirmative action discourse inside the media, as you said, matching the outside strategy to the inside strategy, and I guess it’s sort of a test case, because part of what we’ve been talking about all day is how to shift the frame work. So, even those who support affirmative action, when they think about it is doing us a favor, or preferences, or correcting for, well, trying to maintain diversity in a very simplistic view. All of those supports for affirmative action are very weak, and they are subject to the critiques that many of our friends have brought to bear. So we’ve been talking about that as it gets broadcast, but, what you put on the table for us is, that the problem in the media is a bit deeper than that. It’s not just what gets broadcast, but it’s what the people in the media, who are making the decision, really actually thing. So, when and where is the moment for engagement with them? Is it, are they receptive to the public? Writing in? So, does that mean that what we need to do is get the message out more that, look, what you’re being fed by the media in terms of affirmative action, not only is wrong, not only is counterproductive, but it isn’t serving you well? Does it have to be a consumer led effort? Is it an elite effort? Do they need to hear it from the people that they invite into their homes for dinner? So we need to talk to people like you more? And, talk to you about talking about affirmative action? What’s the solution to what you put in front of us? So, I’ll start with that one and then ask the second one.

Eric Alterman: Yes.
Kimberlé Crenshaw: Yes.
Eric Alterman:
That’s my answer. Yes. In 1964 when the conservative movement found itself very much at a point that the left is at now, although they had the advantage over the left today, that they knew they were in trouble. I mean, they knew they were so badly beaten that they had to do something different. And they rethought everything about themselves, and they came up with all kinds of strategies, and some of them failed, and some of them didn’t. But they understood that they were weak enough in the public discourse, Barry Goldwater had just gotten creamed, and he was their guy. And they understood that they had to sort of try a whole lot of new things, to try and A, retest their ideas, and come up with some new ones, and B, find the language to make those ideas palatable to the rest of the country, if not actually mainstream. And they succeeded incredibly. Of course they had the advantage of being the right wing and having a ton of money. Which the left doesn’t have. But they go Ronald Reagan elected president, a landslide, in 1980. And now they control all three branches of government. And, most of the opinion discourse in the media. The left hasn’t really reached the point, yet, where it can even figure out how to unite on things. I mean, Ralph Read(?) and the Christian Coalition took over the Republican Party. Ralph Nader is destroying the Democratic Party with nothing to replace it. So, I would say that the first thing that all leftists need to do is to start again, and to rethink, where is it they want to be, and strategically, how would you get there? Now, I’ll give you an example of how complicated this problem is. I forgot the second part of my discussion about what it is that news executives believe about affirmative action. I do think they sincerely, I mean, I think you won’t find any people who care more about diversity in their work force than the top editors of the New York Times and the Washington Post. I also don’t think you will find people who resent affirmative action much more than the white male reporters of the New York Times or the Washington Post. There is an enormous resentment in the media, over the fact that every time there’s a job open, the ideal candidate will be a black woman. And that, if there’s a black woman who’s remotely qualified, that woman will be perceived to be someone who will get the job, over someone who is more qualified for that job. That is what is understood, and unspoken. In the media. It’s also understood and unspoken in academia. And the people who perceive themselves as a victim of that, fairly or not, carry that around as a kind of chip on their shoulder, and there are an awful lot of people like that. So, this complicates your effort. I mean, when I was given a column at The Nation, five or six years ago, I heard an enormous amount of, sort of, what’s what word? Like cyber noise, but in the old fashioned … ?

Kimberlé Crensha
w: Grumbling.

Eric Alterman: Grumbling is another way of putting it. (Laughter) Over the fact that here they were giving a white male a column. I don’t really appreciate that. Because I’m the guy. Right? (Laughter) I want the column. And there are a lot of people who didn’t get the column, and didn’t get whatever job, because, they didn’t, they weren’t as lucky as I was in that particular instance. And, if we were talking about another issue, if we were talking about abortion, say, I wouldn’t have to throw in this complication, because, they would be on your side, they just wouldn’t be allowed to give voice to it. But, even though they’re on your side, basically, they love the civil rights movement, they think it was country’s greatest moment in history, Martin Luther King is taught to all of our children as a hero. My four year old daughter knows all about Martin Luther King. They don’t really like affirmative action any more, because it threatens their own selves. If I knew you better, I would tell you stories about myself, but, I don’t. So, that’s a real problem for addressing this issue through the media. Then again, you can’t address this issue without going through the media. And I’m telling you the problem, and it sounds, they way I’m hearing myself say it, it sounds really scary. But I don’t really know what to do.

Kimberlé Crenshaw: It sounds scary to us, too. (Laughter) Devon(?).

Devon Carbado: Yes, I have two things that I’m trying to reconcile. On one hand you seem to be saying that part of the problem is translation, that’s to say, the people in the media, (Inaudible-Off Mic) are in a different intellectual place (Inaudible Portion – Off Mic) support it, but not (Inaudible – Off Mic).

Eric Alterman: Different intellectual places with regard to their understanding of the meaning and importance of race.

Devon Carbado: (Inaudible – Off Mic)

Eric Alterman: And affirmative action falls from that, but it’s not just for (Inaudible), everything happened (Inaudible).

Devon Carbado: (Off Mic) has to do with the specific sense of (Background Noise) constraints, that liberal people (Inaudible-Off Mic) find themselves in. Which is to say they’re worried about (Inaudible – Off Mic) they’re worried about their own professional standing, and it seems to me that it would be helpful to know more about that, because, I’m not sure I understand (Inaudible) why people of good faith (Inaudible – Off Mic) cannot understand affirmative action not in the terms of what they’re describing, so I’m interested in hearing more, then, about why do we require to get those people to take more risks, because if they’re worried about backlash, or their own sense of professional identity, then, that seems to be a deeply profound problem, quite apart from whether or not we can engage in this reframing.

Eric Alterman:
But they’re not usually exclusive. They could both be true at the same time.

Devon Carbado:
I think that’s right, but I guess I’m challenging the notion that there is an impossibility for people in the media to understand precisely what we’re saying in this room. I suspect that there wouldn’t necessarily be complete convergence, but I don’t think it’s so off the wall as to prevent people from getting it. In other words, it has a certain degree of intelligibility that I think people can grapple with. So, for me, the problem of maintaining one’s professional standing seems to be a real concern. I guess I need to hear more about that, whether it’s an obstacle that can be overcome, because quite frankly, I just don’t get completely the idea that they can’t get it. It might be that they don’t want to get it, or get it but don’t want to articulate it, but I don’t know that I can understand why there’ something special about left people in the media that prevents them from getting some of the ideas that we’re trying to articulate here today.

Eric Alterman:
Well, this is a question about epistemology. And all epistemological questions are by their nature, not only complicated, but constrained by the epistemological assumptions that the person brings to them. Like I said, I lived half my life in academia, half my life in the media, so I know all about the social construction of reality and race and gender. But I can’t really do my job if I think about it. You can’t write a newspaper story, where you put the words ‘black man’ in quotes.

Devon Carbado: What, I’m sorry?

Eric Alterman: Where you put the words ‘black man’ in quotes. You have to assume that a person who’s black and of male gender is a black man. And you can’t say, when I say black man, I am accepting, I am referring to the socially constructed notion of race and gender that I don’t really … you can’t do that. You have to accept the notion that there are facts, there is reality, we all agree on what it is, we may turn out to be wrong, tomorrow, but then we’ll print the correction. But, particularly in the American media, where there’s a clear distinction between the ideas of fact and opinion, you have to simply say, these are the facts. Now, you have your facts, and the other side has their facts. Their facts are less complicated than your facts. Your facts require all kinds of understanding of social conditions. And so forth. They have numbers. Here’s what you got on the test. You’re either in or you’re not. You say, well, no. There’s all these other ideas about what do we want in a student, what kind of advantages did this person grow up in Scarsdale? And was tutored since the age of three? And that’s why they got whatever you get now on your SATs? And this person shows incredible natural ability, but, his parents didn’t live there, and didn’t have educational aptitude and so forth. It’s a much longer, more complicated argument. It’s not really suited, certainly not suited to talk radio, or television debate, which is where the vast majority of Americans get their news. And, it’s apparently not suited even to the longest special report that any news paper has done in my memory, the New York Times series on race, which, the New York Times and most liberals in the news media would point to you as a model of an incredibly ambitious and open minded undertaking of which they’re enormously proud at the expense of a great deal of conservative criticism. They’re not really even aware of left criticism of that. I’m talking about the people at the top. It’s a conservative issue, that series, not a liberal issue, not a left wing issue. So, I get an awful lot of mail, because I have a web log at MSNBC. I’m really easy to reach. Actually. Kimberly. And, yesterday I got 300 e-mails. Okay? Because it’s something I wrote about Delor(?). And so I have a pretty good idea of what people who are pinnacally(?) engaged are thinking and feeling. And, on the issue of race, the debate is always, you’re ignoring this fact, you’re ignoring this fact, you’re ignoring this fact. One out of 500 e-mails will be, well, you didn’t, and I don’t, I mean, if I were criticizing myself, I would say, look, you only wrote 300 words about this, you didn’t do justice to its complexity. I never get that criticism. There’s very little space for the kind of teaching that you’re talking about being done in the media. And if you do too much of it, you can’t do your job, because you can’t write what happened today, say it in a way that people who pick up the newspaper can understand it. And even if you’re talking about a newspaper, you’re already talking about something of an elitist institution, because, fewer and fewer and fewer people read newspaper, more people are getting their news from sort of catching it on television, hearing it from late night comedians, and Rush Limbaugh and the like. So, I’m just making the problem sound more complicated and more daunting, but I think it’s true, it’s real. I don’t … sorry.

Audience Member:
Hi. In the American Prospect, I think it was Chris Mooney(?) who tried to describe the biases of the media as a schism between the left and
the right, whereas the right was an intentional bias, and the left was a bias of perception and of stereotypes, where they basically took the common difference since Bush dubbed Gore liar, is the great example. Where they just took the stereotype and ran with it, no matter what the facts were. Whereas, and then, to add on to that, Lee Korkinos(?) of the Institute for Democracy Studies, discussed in his work, about the great build-up to the conservative media that involves the Cato(?) Institute, Heritage Foundation, the IES(?), and finally, accumulating with Fox News. And, is this a battle that’s, do you agree with these perceptions of the schism between the different biases in the media? And if so, how do liberals get their Fox News, and the different pieces that build the backbone of what would be the liberal Fox News?

Eric Alterman:
I guess I get to say, I wrote a whole book answering that question, and you can buy it from Basic Books. And it’s …

Kimberlé Crenshaw: (Overlapping Voices) .. talk about. Before you answer that, why don’t we get all the other questions on the table, because, you have to go soon.

Eric Alterman:
I have to go now, in 15 minutes ago.

Kimberlé Crenshaw:
Let’s get all of them on the table, so, there was a question here.

Audience Member:
One of the questions I had is, you’ve talked a lot about the biases from the reporters’ point of view, and the lack of space for a real education process. Which one is more at play when there are black conservatives that are on these shows, who are not challenged? Couple of years ago, we had here a conference at Columbia. And Armstrong Williams was invited. And during the panel, we were having a discussion about affirmative action, and, we had to (Dropout) and that there were not, and I kid you not. He did not know this. And he has put up as a spokesperson. He did not know that all schools did not have AP courses. He did not know that you got more credit for AP courses. And so, if anyone challenges him, just a little bit, he would be exposed. So who’s, where is the breakdown in that, on the media? Is that the reporter? Their bias in not wanting to challenge too much? Or is it simply the lack of space to do that?

Kimberlé Crenshaw: Connie(?)?
(Background Conversation)

Audience Member:
I’ll ask mine, and then go to yours. Here’s a quick one, Eric. Hope you’re writing these down. I was really stunned by your report that a lot of people who were very happy about the series on race in the New York Times. First felt stunned that they were critiqued, and then also took heat from the conservatives. And, one of the things I thought might be helpful in our deliberation here is to figure out how we can use some of the research that you did to respond overall to the argument that’s made by the conservatives, that there’s liberal bias, there’s liberal bias when in fact, if there’s any bias, in a lot of this stuff, it’s not liberal at all, so, taking the big picture that you talk about, how does it apply to the little ones, so that when we’re talking about this series, and the conservatives are saying ‘liberal bias, liberal bias,’ right, how do we take what you found more broadly and apply it to responding to that particular argument? And Connie(?), you wanted to say something. Your last question.

Connie Rice:
Yes, to throw into that, I guess I was struck by a couple things that would be interesting to hear you talk about. One is, I was thinking about The Nation, The Washington Post and New York Times, and the comment you made about the search for diversity and how that plays out. Probably more familiar with The Nation than the other two, because I contribute from time to time. It seems really interesting, how that stuff plays and then how it has an impact on what’s in the pages. And I was thinking of it, that normally when we’ve had the discussion, like with my editor, there were other folks there about how that plays out in terms of what gets covered or what’s in there. People do normally go to, well, we can’t put in, we can’t talk about race as a social construction in the context of our other stories, but, I was thinking about the AP land loss series. Which I never saw it, but, AP did a series on black land loss, black theft. Or the theft of black land by whites that ended up in Alabama legislative investigation, a whole lot of things that was an example of, even though not everybody who was in the place was a person of color, or even dealt with social construction in terms of how they did their every day story, but they looked at a way of reporting institutional racism and how it had an impact on everyday life, and that there are things like covering welfare, or covering budget cuts, or covering things that may not necessarily be considered racial stories, but have racial impact, and that part of having a lens of how you look right at how you would cover those stories or how you might write about them, would be to ask maybe to begin to ask the question, does this have an impact on some people differently than other people? How does that play out? What would it take to do that? And then, I guess the last really quick thing is that, related to that is, one of the processes of hiring has to do with who is considered, that at the entry level, it’s one thing. It’s like, that’s where most of the diversity happens, but when you get into the elite groups like the investigative reporting units, the other kinds of things, there is no consideration of people of color for the most part, I mean, people are basically going after the folks who’ve won Pulitzers and how that works, and, what’s interesting …

Eric Alterman: Well, they’re hiring their friends.

Audience Member:
Well, yeah, but I’m saying the bias …

Eric Alterman:
It’s no more or less insidious than that, they’re hiring the people they know.

Audience Member:
They’re hiring the people that they know, but part of it is, is also, because I’ve actually interviewed folks about these practices, both in mainstream and in alternative press, and I guess my question to you is that, because you were talking about it as if there’s a story that they’re telling each other about the mythical black woman who will be hired if they could find her. But there’s another story, it seems like, and that’s the story of the fact that there aren’t any qualified minorities who can be in senior positions who can help make these decisions about how these news stories get constructed.

Eric Alterman: Yeah.

Kimberlé Crenshaw:
You’ve got five minutes to answer it all.

Eric Alterman:
Well, the answer to the first question is, read my book. It’s all there. Read the first chapter on the website, for free.

Kimberlé Crenshaw:
What liberal media …

Eric Altertman: It also will give you all of the ammunition you need to beat up, like, Anne Colter(?) and Bernard Goldberg(?). That’s all on there for free, too. In the appendices. Second question, the thing about the likes of Armstrong Williams and other black conservatives. Here’s something that’s real important about them. They’re good TV. Okay? And part of the reason they’re good TV is because, blacks are supposed to be liberal and they’re conservative, so, they’re surprising TV. Same thing with all these blonde conservatives. But, it’s TV, and they’re good TV, that’s the first thing, and really, it’s almost all they think about. When I was on MSNBC with Kimberly(?), it’s true, I used to cause a lot of trouble, and I was occasionally this close to being fired. But it was never for political reasons. It was always because I said something that would embarrass one of the executives for some reason. Or I said something that was inappropriate. But they never said, no, you can’t go that far to the left. We won’t allow that. I’m not that far to the left, but I was probably the most l
eft wing person who was regularly on TV at that time. So I think if you learn how to be good TV, it doesn’t really matter that much what your politics are. Just like it didn’t really matter that much what Ronald Reagan’s politics were. He wasn’t elected president because people liked his politics. It was because they liked him. George Bush, too. Nobody even really knew what his politics are. And he wasn’t even really elected. (Laughter) But, the reason that it was even close was all about his personality, the project, the way he appeared. And, that is in part in answer to your question, too. It’s about the way to be effective with people is to speak their language. It’s not to hit them over the head. And say, you’re a weasel. You’re a racist. You’ve got a Klan suit on underneath that pinstriped suit of yours. It’s to know what they do, to understand the questions they ask themselves and the challenges they face, and speak to them in that context. That’s what I believe. I could be wrong. Some people have been very effective doing it the other way. I think that can be more counterproductive than not. I think, if you want to make people see the world your way, you have to speak to them, you have to go to their homes, figuratively speaking, and speak to them where they live. And where they work. So, I think the answer, really, and I hope this addresses your point as well, I do think these places are enormously open to infiltration. Like I said, certainly at the entry level, we can agree, they do want to hire as diverse a work force as they can. And I agree, it gets more complicated when you get to the senior position, and that’s largely because of a certain comfort level that has to do with who you went to college with, and who your wife went to college with, and who you socialize with, and it’s another strong reason why you have to keep fighting the fight for affirmative action. At that level. Because that’s, sometimes, where things get determined. But. Leaving that aside for a moment, I do think that all of these media institutions are incredibly open, and welcoming of diverse peoples. Working, the New York Times is the most gay friendly work place I’ve ever seen in my life. Maybe the Village Voice is more, but, I mean, you wouldn’t believe the amount of effort that comes down from the very top. Arthur Salzburger(?), Jr., the publisher, and the family that owns it, he talks about the importance of gay people feeling at home. And the embrace of this lifestyle, not lifestyle, but the embrace of this group of people, to make them just feel comfortable, to a degree that, I don’t think any other CEO of a company that size does in America. And that’s both for business reasons, but it also is because it’s basically a liberal culture. And so, the challenge here is, it’s a challenge that John Dewey(?) first identified, which is that, if you join this culture, and you become part of it at entry level, and you want to succeed and you’re ambitious, how do you become, how do you stay true to what it is you joined for, as opposed to embracing the goals and the values of the culture itself? That’s something you can worry about once you’re in there, and you will have to worry about that. But I do think that this is one place where I can honestly say you have a cause for optimism. The media are open to people of diverse backgrounds and all kinds of diversity. And they understand that this is a problem. They want to address this problem. They know they haven’t been successful in pressing it. And, you can use that to your advantage if you’re patient, and you’re willing to learn how things work. If you go in there and say, I don’t like the way things work. Here’s how they should work, you won’t get anywhere. I mean, I’ve tried that. Doesn’t work. Even though I was right.

Kimberlé Crenshaw:
Eric, you’ve given us a sobering sense of what we’re up against, so, thank you very much for sharing your time with us. And, by the way, for those of you who would like to read the book to get the answers to the questions that Eric (Inaudible) his book, we have the book, and, you can see Mark, who’s in the back, to get your own copy and maybe an autographed on. So, thanks very much, Eric.

Eric Alterman:
Thank you.
(Background Conversation, Applause)


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