The Faculty Lounge

Two Part Civil Rights Movement Trivia

It's been a little while since we had a monument or building trivia question.  This question is inspired by David Garrow, who suggested a couple of sites around North Carolina that were important in the Civil Rights Movement.  So perhaps this is the start of some serious civil rights monument trivia.

This is a little different from past building and monument trivia.  And somewhat easier than recent ones.  Jason Mazzone's never been stumped yet -- which is sort of shocking to me because one of the buildings I couldn't find anywhere on the net ... and I knew what I was searching for! 

There are two parts to this question.  First, what's the building on the corner (next to Tom Cats and two doors down from Internationalist Books) and where is it?  This is the easy part.  Now, the tough part.  What was it during the Civil Rights movement and why was it important?  Actually, there are two trivia questions here, because the building at the far left on the other corner is on the site of a building that was important in the Civil Rights movement.  But let's stick with the building on the corner with the green awnings for now.

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

Exploring "Educational" Epithets

The image of the t-shirt in Eric's post, and the various reactions it received (mine included) have been very enlightening. The use of insults and slurs can be used as "teachable moments" in various classroom settings, but we all have a moral compass that makes us seriously take pause when a certain usage crosses the line. In Advocacy to Zealousness, many of the films I've included have a secondary purpose of encouraging the exploration of various elements of diversity in the legal profession. Some of the films include the use of slurs. Perhaps the most famous example is To Kill a Mockingbird (1962). Another is Gentleman's Agreement (pictured, 1947), an earlier film starring Gregory Peck that explores Anti-Semitism. My question concerns open discussions of diversity in classroom settings, either with law students or during CLE presentations involving attorneys. How do you approach these topics in classroom settings? What steps do you take to ensure that these potentially-heated subjects are discussed openly and civilly?

Don't Read if Disillusioned About Legal Academia ....

With thanks to a colleague - I won't embarrass her by identifying her here - some of you may enjoy this comic novel excerpt from Cameron Stracher's new work, The Law School Trifecta.

North Carolina Sterilization Victims Compensation

There is some forward progress in the movement to provide compensation to people who were sterilized in North Carolina.  The LA Times' story is here and CNN's is here.  Here is the home page of the North Carolina Justice for Sterilization Victims Foundation and their reports are here.

Derrick Bell's Legacy: Of Madison and Meta-History

At the AALS conference last week there was a panel on Derrick Bell's legacy.  It's looks like it was terrific.  Here's the description from the AALS program: 

This 2012 Annual Meeting is a first opportunity for AALS to acknowledge the debt legal education owes to Professor Derrick Bell (1930-2011), the first African American professor at Harvard and a world-renowned scholarteacher-activist. His signature written work includes his path breaking1973 casebook Race, Racism, And American Law, his 1985 Harvard Law Review Foreword, "The Civil Rights Chronicles," and his numerous books--And We Are Not Saved; Faces at the Bottom of the Well: The Permanence of Racism; Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004); Confronting Authority: Reflections of an Ardent Protester; Ethical Ambition: Living a Life of Meaning and Worth.  Not only did he enrich our scholarly debate. He acted to confront our complacency with the racial and gender status quo. 

This panel reviews his legacy and discusses the relevance of that legacy for our present and future. That legacy includes his critique of law as a limited path to equality for African Americans, his critique of Brown’s integration remedy, his work to diversify law school student and professorial ranks, the founding of critical race theory which examines the role of law in the maintenance and elimination of racial subordination, his specific narrative and interdisciplinary scholarly innovations, his pedagogical commitment to place students at the center of the learning process, his commitment to the mentoring of a broad scholarly community, and his insistence that conscience, morality, and protest remain an integral part of academic duty.

They had an all-star cast on the panel: Linda S. Greene of the University of Wisconsin, John C. Brittain, of the University of the District of Columbia, Pat K. Chew of the University of Pittsburgh, Frederick D. Greene of the University of Dayton School of Law, Kevin L. Hopkins of The John Marshall Law School, Gerald Torres of the University of Texas, and Patricia J. Williams of Columbia.

I thought that I'd use this as a chance to post a little bit about two pieces of Bell's scholarship that I think are not so frequently spoken about.

Policing White People

In an op-ed published Friday, I argue that the new "normal" policing involves both hyper-policing and militarization - but that these policies can only be sustained, politically, when they are used on under-represented minorities.  That's why the UC Davis pepper spray incident  - as well as the news from Alabama that the police had arrested a Mercedes executive who couldn't prove his right to be in the United States - are so potent.  From the point of view of policing norms, these actions were totally appropriate.  But the only way that our society has even come to tolerate these police norms has been with the tacit agreement that they would not be used on white folks.  From the piece:

As police culture has shifted, the police seem to have forgotten — or perhaps never realized — that these aggressive policies are really only politically sustainable when they’re employed against disempowered communities. Airport profiling is OK for Muslims. Random street searches are OK for African-Americans. And seat-of-the-pants immigration detentions are fine for Mexicans. But you can’t engage in invasive stops, searches and unsubstantiated detentions of, and attacks on, white folks without other white people getting agitated. What’s good for the goose has never been good for the gander.

That’s why the UC Davis video is so powerful. These are campus cops using the new normal police strategies — the police experts agree — on white people. It turns out, the public isn’t as comfortable with the new normal as the police believed. Meanwhile, in Alabama, the state is trying to figure out what to do when a police officer uses his new powers to detain a German Mercedes executive — visiting the company’s Tuscaloosa factory — on the grounds that he could not prove his right to be in America.

  Read the full op-ed here.

NYT Room for Debate: "Tribal Sovereignty v. Racial Justice"

Today's New York Times features a roundtable discussion on the issue of race and membership in Indian tribes.  Link is here.

Synopsis:
When the Cherokee were relocated from the South to present-day Oklahoma in the 1830s, their black slaves were moved with them. Though an 1866 treaty gave the descendants of the slaves full rights as tribal citizens, regardless of ancestry, the Cherokee Nation has tried to expel them because they lack "Indian blood."

The battle has been long fought. A recent ruleing by the Cherokee Supreme Court upheld the tribe's right to oust 2,800 freedmen, as they are known, and cut off their health care, food stipends and other aid in the process.

But federal officials told the tribe that they would not recognize the results of a tribal election later this month if the citizenship of the black members was not restored. Faced with a cutoff of federal aid, a tribal commission this week offered the Freedmen provisional ballots, a half-step denounced by the black members.

Is the effort to expel of people of African descent from Indian tribes an exercise of tribal sovereignty, as tribal leaders claim, or a reversion to Jim Crow, as the Freedmen argue?

Contributors include:
Matt Fletcher (MSU)
Carla Pratt (Penn State) 
Rose Cuison Villazor (Hofstra)
Kevin Noble Maillard (Syracuse)
Joanne Barker (SF State)
Cara Watt-Cowan (Cherokee Nation)
Heather WIlliams (Cherokee Nation)
Tiya Miles (U Michigan)

----
Graphic: my great-great-grandfather, Jimmy Carter, c. 1885, Wewoka, OK

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 2

The first afternoon session of the "Critical Perspectives on Tax Policy" featured these presentations:

• Karie Davis-Nozemack (Business, Georgia Tech), "Collision Course: EITC and the Rise of IRS Correspondence Examinations"
• Lisa Philipps (Osgoode Hall), "Canada Revenue as Social Service Agency? Equality Issues in the Administration of Tax-Delivered Benefits"
• Ajay Mehrotra, "The Old Fiscal Order: Trouble with Tariffs and the Faltering Property Tax."

The second afternoon session (currently underway) has three speakers:

• Samuel Brunson (Loyola-Chicago), "Polygamy and Tax: Married Filing Jointly (and Severally?)"
• David Herzig (Valparaiso), "A Call for Action: DOMA and the Internal Revenue Service"
• Marjorie Kornhauser (Arizona State), "Taxing Bachelors."

So far, we've had lots of good discussions about procedural due process in the federal income tax context and what it means to say that the tax law is "political."  We'll have some off-the-grid conversations into the evening.  

Live Blogging "Critical Perspectives on Tax Policy" Conference at Emory Law - Part 1

At Emory University School of Law, the first day of the "Critical Perspectives on Tax Policy" conference is well under way.  They program began with a welcome from Dean Robert Schapiro and an introduction by Professor Dorothy Brown.  Professor Brown explained the origins of the conference in conversations with national tax colleagues about a desire to "put the 'critical' back in critical tax theory."  

Here's how Tony Infanti (Pitt) and I described the field in Critical Tax Theory: An Introduction.

Tax law is political. That is a fundamental assumption of critical tax theory....[A]ll critical tax scholarship shares one or more of the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate non-tax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. Critical tax scholars employ a variety of methods to achieve these goals. Among other methods, the contributions to this book demonstrate how critical tax scholars bring “outsider” perspectives to the study of tax law; use historical material, contemporary case studies, and personal or fictional narratives to illustrate the practical impact of the tax laws on individuals and groups; interpret social science and economic data to show how the tax laws impact groups differently; and explore the interconnectedness of tax laws with economic forces such as the labor market (especially as it impacts women) and international financial and political development.

During the first panel this morning, John C. Scott (Public Policy, UNC) presented his work on "The Problem of Private Pensions: Risk, Institutions, and Politics in the Hidden Welfare State."  Reginald Mombrum (NCCU) spoke on "Shifting the Paradigm by Bringing Tax Arbitrage to the Lower Income Separated Family: Why Should the Middle to Upper Class Family Have All the Fun?"  I shared a few thoughts on "Wealth, Inequality and Democracy."

In the morning's second panel. Lynn Lu (NYU) workshopped her paper, "Beyond Watchdogs, Whistleblowers, and Scapegoats: Pushing the Limits of Social Justice Reform through Tax Exemption for Public Charities."  Carolyn Jones (Iowa) just began her talk by saying, "This is a low-tech presentation on sin."  The formal title of her presentation is "Taxation as a Means of Reaching the Kingdom of God."  Up next will be Andre Smith (Widener) talking about "Taxes and the Demise of White Supremacy in the United States." 

Lots more to follow!

Legal History Teaching Resource -- The Black Power Mixtape 1967-1975

Folks who teach (or are interested in) legal history or other aspects of 20th century law and politics may be interested in a new film by Göran Hugo Olsson.  "The Black Power Mixtape 1967-1975" won one of the awards at Sundance in 2011.  Here is the official description of the film:

THE BLACK POWER MIXTAPE 1967-1975 mobilizes a treasure trove of 16mm material shot by Swedish journalists who came to the US drawn by stories of urban unrest and revolution. Gaining access to many of the leaders of the Black Power Movement—Stokely Carmichael, Bobby Seale, Angela Davis and Eldridge Cleaver among them—the filmmakers captured them in intimate moments and remarkably unguarded interviews. Thirty years later, this lush collection was found languishing in the basement of Swedish Television. Director Göran Olsson and co-producer Danny Glover bring this footage to light in a mosaic of images, music and narration chronicling the evolution one of our nation's most indelible turning points, the Black Power movement. Music by Questlove and Om'Mas Keith, and commentary from prominent African- American artists and activists who were influenced by the struggle -- including Erykah Badu, Harry Belafonte, Talib Kweli, and Melvin Van Peebles -- give the historical footage a fresh, contemporary resonance and makes the film an exhilarating, unprecedented account of an American revolution.

More info is available here.  Here's the trailer:

 

The film arrives in some theaters in September.  Judging from the trailer, it contains several interviews and other clips that haven't been available to the public until now.

The Latest on the Tulsa Riot

In a few days Lee Roy Chapman's major article on Tate Brady, a leading figure in the growth of Tulsa in the early twentieth century, will be published in the September issue of This Land Press, a progressive monthly magazine (named -- of course for Oklahoma native Woody Guthrie's song "This Land is Your Land.")  Chapman's interested in Brady's role in the violence that led up to the riot and in the riot and its aftermath, too.

Tate Brady played almost no role in my story of the Tulsa riot (and the aftermath); I was interested in the African American side of the story in the years leading into the riot and how the ideas of equality and opposition to lynching led Tulsa's African American citizens to take action to protect themselves and stop a lynching.  That, tragically, met with the ideas of white supremacy on the other side of the railroad tracks that separate the black and white sections of Tulsa.  Most of Chapman's article, "The Nightmare of the Dreamland," which I had the pleasure of reading a month or so back, was new to me and I think it will be the starting point for a lot of rethinking of Tulsa's history in the 1910s and 1920s.

You can see a brief trailer for the story here.

Also, here's a link to an article I published a decade ago in the Oklahoma Law Review that uses William Redfearn's brief in his case against the American Central Insurance Company to help reconstruct the riot (and here's the brief itself).

Novkov on Román on Citizenship and Its Exclusions

In the April issue of Law & Politics book review, Julie Novkov, Department of Political Science and Women’s Studies, University at Albany, SUNY, reviews Ediberto Román’s Citizenship And Its Exclusions: A Classical, Constitutional, And Critical Race Critique, New York: New York University Press, 2010 (Critical America Series):

Ediberto Román’s CITIZENSHIP AND ITS EXCLUSIONS: A CLASSICAL, CONSTITUTIONAL, AND CRITICAL RACE CRITIQUE primarily analyzes exclusionary and partial practices of state recognition of citizenship in the United States. Román identifies several ways that citizenship as a concept, despite its universalist aspirations, fails to embrace all those subject to the laws of the United States in equal ways. Relying on T.H. Marshall’s tripartite classification of citizenship (political, civil, and social), Román shows in historical and contemporary terms that members of some groups (women, African Americans, and Latinos, for instance), do not achieve full access to the rights of citizenship in Marshall’s terms. However, he also notes that millions of individuals living under the sovereign authority of the United States possess rights of citizenship only at the whim of Congress because they live in territories rather than states. His goal is to show that, while “Western societies have uniformly accepted the aspects of citizenship discourse that have championed equality . . . these same societies have repeatedly denied disfavored groups full social, civil, and political citizenship rights” (p.12). 

Read the full review here: Vol. 21 No. 4 (April, 2011) pp.204-207.

 

Race and Respect

I've just been reading through the ABA's recent report:  "After Tenure:  Post-Tenure Law Professors in the United States" (Mertz, Tung, Barnes, Njogu, Heiler and Martin).  This is the first in a series of planned publications reporting on an after tenure study.  Thus, its findings are not yet too detailed or analytical but rather report the key statistically significant differences between groups picked up on a variety of criteria.  One thing that jumped out at me was that with respect to job satisfaction, the survey found a disparity between minority professors' feelings about respect and comfort within their institutions as compared with their position within their chosen field.  The authors suggest that perhaps the immediate law school environment is less supportive for minority professors than the wider legal academy broken up into its distinct fields.  I wonder what might explain such a phenomenon.  Does anyone have any thoughts?

I also noted that the survey included a study of the impact of race and gender on the various criteria investigated - job satisfaction, interaction with students, committee work, income etc.  However, it did not study people identified in any GLBT groups.  I wondered if this was because there is too little reported data to work with as compared with race and gender, or if there was some other reason this was not included.

New Article on Mismatch

In Sander v. State Bar of California, I noted a recent court opinion relating to the quest by Richard Sanders (UCLA) and others to force the California Bar Examiners to disclose data for the purpose of further testing of Sander's Mismatch Hypothesis. 

Gregory Camilli (Colorad0, Education) and Kevin G. Welner (Colorad0, Education) have an interesting new article, Is There a Mismatch Effect in Law School, Why Might It Arise, and What Would It Mean?, 37 J.C. & U.L. 491 (2011).  The article is a survey of the literature.  What's interesting is that Camilli and Welner  go beyond the law-school mismatch studies, and also look at studies of "match effects" in other "heterogeneous learning environments," from kindergarten to college undergraduates.

Apart from doubts about the existence, significance and direction of match effects, Camilli and Welner see match effects as a separate issue from the value of affirmative action or diversity:

* * * Even if match effects were estimated with a much higher degree of precision, there is only a tenuous connection between match effects and the logic in Grutter v. Bollinger concerning the broad educational benefits of diversity. Empirical match effects have no bearing on the intangible benefits of attending and graduating from an elite law school, nor do they have bearing on the “merit” argument against affirmative action. In the end, the two issues--match and affirmative action-- may inform one another, but they are truly separate conversations. Evidence of mismatch ultimately has nothing to do with race or ethnicity, and explanatory support for the hypothesis should be examined with regard to students substantially less credentialed, whatever the basis of their admission. Focusing on race, and thereby on affirmative action, sorts out one group and thus creates the perception of a political motivation to change admission policies. This may further encourage the incorrect assumption that without affirmative action, there would be little diversity in pre-law credentials at elite schools. Most unfortunately, the affirmative action focus of the extant mismatch hypothesis discussion implies an admissions-based solution to any performance concern, rather than a solution grounded in academic and social supports for lower-achieving students.

Id. at 526-27 (emphasis added).

Hugo Black Courthouse

Mark Brandon reminded me when I was talking with him about building renaming last summer that the new courthouse in Birmingham is named after a former Klansman.... Hugo Black.  For rather obvious resasons, we dot not care much about that part of Justice Black's history at this point.  And therein lies a story about the issues related to building renaming -- or in this case building naming in the first place.

I have an essay in a symposium built around Thomas Russell's article on the dormitory that was named after UT Austin law professor William Simkins back in the 1950s on UT's campus.  You may recall that it was renamed last summer and now the South Texas Law Review has published Tom's article and commentary by a couple of people -- including my friend Leslie Harris of Emory's history department, Lee Daniels of the NAACP, Dean José  Roberto Juárez of the University of Denver,  and me. 

My essay, "The Law and Morality of Building Renaming," uses Simkins Hall as the jumping off point for considering the law related to renaming.  Vanderbilt's lawsuit with the United Daughters of the Confederacy is probably the most important case on this topic, though there usually isn't a whole lot of law on this, because so many namings have been gratuitous.  More important than the law is the morality of all this.  I suggest that we should look to the circumstances of naming in the first instance -- including who had a part in naming and what was the purpose of the naming initially -- then that we should assess what, if anything, the name means today, and also look to what the relevant community thinks about the name now.  While this is sort of an applied ethics, I try to incorporate the facts surrounding naming and current meaning into our calculations.  This draws heavily upon analogies to the Ten Commandment cases, obviously.  Perhaps this tilts too much in favor of keeping names; however, as I point out in the conclusion, there is a danger that in removing a name we forget about the past.

Mack and Brown-Nagin on "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy"

The second day of the AALS workshop on "Women Rethinking Equality" featured luncheon addresses by legal historians Kenneth Mack (Harvard) and Tomiko Brown-Nagin (UVa).  The theme was "Race, Sexuality, Identity and the Roots of Feminist Legal Advocacy."  

Professor Mack spoke about civil rights lawyer Pauli Murray (picture at right) and her development of a "Jane Crow" theory of gender discrimination.  Professor Mack is completing a book entitled Representing the Race: Creating the Civil Rights Lawyer, 1920-1955, to be published by Harvard University Press.

Professor Brown-Nagin shared her work on Constance Baker Motley, the civil rights lawyer, judge, and government leader.  In her public remarks, Judge Motley never acknowledged that she had experienced gender discrimination. Professor Brown-Nagin's work with Judge Motley's private papers reveal the Judge's awareness of gender inequality and its deleterious effects.  Professor Brown-Nagin is working on a biography of Judge Motley.  

In the film clip below, Judge Motley talks about how she first became interested in the law.

 

I'm interested in these two historical figures and the work of these two legal historians.  Looking forward to reading both forthcoming books!

Sander v. State Bar of California

Richard H. Sander (UCLA) started a firestorm of controversy with his article, A Systemic Analysis of Affirmative Action in Law Schools, 57 STAN. L. REV. 367 (2004). Using data from the LSAC National Longitudinal Bar Passage Study, Sander argued that minorities who attended more elite law schools performed did not do as well as minorities who were admitted to an elite school, but chose to attend a non-elite school at which their LSAT scores and undergraduate GPAs more closely matched those of other students--the so-called "mismatch hypothesis".

To test the mismatch hypothesis, Sander and others proposed to study candidates for the California Bar exam. Apparently, California collects detailed information on candidates for its Bar exam. One of Sander's proposed co-investigator was Dr. Stephen P. Klein, a psychometrician previously consulted by the California Bar examiners, as well as those of most of the other states. The study would be conducted using privacy safeguards, such as those employed in the LSAC Bar Passage Study, as well as in analyses of the Texas and the New York Bar exams. See, Proposed California Bar Study.

When the State Bar of California refused to release the data, Sander sued to force the release. The trial court held that the data was not subject to public inspection, because the data were "adjudicatory court records". In Sander v. State Bar of California, A128647 (Cal. Ct. App. June 13, 2011), a panel of the Court of Appeals reversed. The Court of Appeals found that the data were "public documents," rather than "adjudicatory court records," and remanded to the trial court

... to determine whether the Bar must produce the requested information after balancing the applicants‟ interest in confidentiality and the burden this request imposes on the Bar against the strong public policy favoring disclosure. The trial court is best suited to craft any qualifications to an order for production that can accommodate these concerns if possible.

Slip Op., at 1-2 (emphasis added). No doubt, the case will soon be on its way to Sacramento San Francisco and the California Supreme Court.

My problem with the proposed California Bar study is that, like the Texas and New York studies, on the primary investigator will have access to the underlying dataset. After the LSAC Bar Passage Study, a bowdlerized version of its dataset, stripped of names, law school identities to reduced to 6 clusters (see Interpretation 301-6: Low LSATs and High "Cut Scores"), and law school locations reduced to geographical regions, was made publicly available (see Note after the Executive Summary of the Bar Passage Study).

Hat tip: Chronicle of Higher Education, California Court Revives Affirmative-Action Scholars' Quest for Data on Law-School Grads (subscribers only).

Update: As Vladimir points out in a comment, I don't know how things work in California. It never occurred to me that the California Supreme Court did not sit in Sacramento, but in San Francisco.

Half-Hearted Loving

  Yesterday, June 12, marked the annual celebration of Loving Day.  This event commemorated the 1967 Supreme Court case of Loving v. Virginia, which invalidated the state’s Racial Integrity Act that prohibited interracial marriages.  Notably, Virginia’s law was only one of many state interracial bans.  In the mid-twentieth century, 30 states had some form of mixed marriage prohibition, all struck down by Loving in one fell swoop.  In this momentous decision, the Court paved the way for all Americans to determine their intimate associations without regard to race.

More than forty years later, interracial intimacy—dating, cohabitation, and marriage—continues to go against the norm, rather than be a part of it. The 2010 Census reports that less than eight percent of all marriages are between people of different races, with slightly higher rates for cohabitating couples.  Multiracial people remain a very small part of the national population, just under three percent in 2010. 

Why has the world, interracially speaking, resisted change?  Arguably, the passage of four decades would change the face of the nation.   That Hallmark-worthy dream of a post-racial America is the welcome hope of Loving Day.  It champions the swirl of multiracial families and celebrates the freedom of individual choice.  It is a beautiful fête of the pastel, the blended, and the all-encompassing beige. 

It is true that these numbers have increased since the day that Richard Loving and Mildred Jeter tried to marry in their home state of Virginia. The state Racial Integrity Act of 1924 prohibited mixed marriages in an effort to maintain racial purity, namely white racial purity.  This state-sanctioned eugenics scheme aimed to separate “white” from “colored” by ensuring that whites reproduced only with other whites.  Everyone else, black, Native, Asian, and Hispanic, were beyond the pale.  Literally.

However, the Loving case was not the Moses that parted the racial sea, ushering in multihued phalanxes of diversity. In a modern world where people are free to make their own choices, partner selection has not changed much.   Of course, a single case like Loving is not going to convert every American into the Temple of Miscegeny, and mandate interracial kumbayahs for everyone of dating age.  In the same way that the legalization of gay marriage would not unearth a wellspring of same-sex desire, a change in law does not automatically transform personal preferences.

Even the best-intentioned, blue-stated people tend to self-segregate.  A recent study by the Russell Sage Foundation noted that northern, liberal cities fill the “most segregated” list.   And in the close-quarters of diverse college campuses, students stick to their own.  The fact that “interracial dating” is still an issue demonstrates a lingering, palpable belief in the authority of racial boundaries.

Vestiges of discriminatory laws affecting housing, education, and most intimately, marriage, make daily impacts on our contemporary lives.  Even today, our neighbors, classmates, and loved ones are largely contoured by race.  This lingering spectre of antimiscegenation law is like an uninvited ex—it keeps popping up when least wanted, and the painful memories die hard.  South Carolina and Alabama repealed their dead marriage laws by a slim margin in 1998 and 2000, respectively.  A justice of the peace in Louisiana refused to marry an interracial couple—in 2009.  And half of Americans remain suspicious of Barack Obama’s ethnicity. 

Decades later, news media constantly remind us that interracial marriage is at an all-time high, and that increasing numbers of Americans self-report multiple races on the census.   Ideological millennia have passed since Strom Thurmond’s fiery speech about “the nigra race” in Southern churches, homes, and pools.   We no longer fear the segregated Woolworth counter, the firehoses in Alabama, or the sting of blatant “whites only” signs.  We call ourselves “post-racial.”

Do we really make independent choices about intimate relations?  “It’s not about color,” some might typically say, “it’s about economics/geography/preservation/NASCAR.”  Even when these variables of convergence are the same and the people are different, the pink elephant of race stomps on the possibility of uninhibited association.  It’s impossible and short-sighted to ignore it.

Prohibitive schemes like the Racial Integrity Act achieved their goal—to maintain racial boundaries by way of legal and social stigma.  They shaped family formation, solidified racial mores, and ultimately directed personal choice—all with the force of law. So if Loving Day marks a liberation from antimiscegenation law, it represents an ongoing struggle to eradicate the divisive legacies of the past. On a daily basis, we live with these ghosts.

The Invisible Woman Versus The “First And Only”

Via my colleague, Kate Bartlett, I came across this short article by Amanda Gerut, Still Working to Cure ‘Invisible–Woman Syndrome,’ in Agenda.  The article opens: 

Women on boards aren’t considered token members anymore. But they still must work doubly hard to claim leadership positions and sometimes to prove their value to male board colleagues. 

The piece probably caught my attention because of some similarities to the narratives of tokenism that Lissa Broome, John Conley, and I discuss in Does Critical Mass Matter? Views From the Boardroom. Several of our female respondents reported that they worked harder and prepared more for board meetings than their male colleagues.

For many, this felt need to work harder did not just emerge in the boardroom, but reflected a lifetime pattern of behavior derived from being the first and only female or minority at many important career stages.  For example, in response to a question about whether she felt she was being held to a higher standard as a woman and therefore had to work harder, one respondent—a pioneering white female director as well as a member of her company’s management team—recounted her up-bringing and her education:

A: I think that I have a tendency to create that higher standard for myself, because having grown up in the timing that I did, I was al- ways the only woman doing whatever it was, and so, as a result, I always felt I had to work harder—example, being in an accounting class where I was the only woman, and back there that was—back then it was very common, and the professor saying that he had never given a woman an A. And, I mean, he announced that to the class. And you couldn’t do that today. So there was always that tendency that you had to work harder. 

My father was the type who didn’t feel that a woman should go to college, that a two-year school was all that a woman needed. And I had to—I proved him wrong. I paid for myself to go to college, whereas he totally paid for my brother and gave him a car. So I had to prove that I was going to do better than my brother. So I think you get that ingrained into you.

In a similar vein, an African American female director said that she “absolutely” prepared more for board meetings than other directors. Her explanation centered on being black, female, and middle class:

I was always told, and remember I grew up in the 60s when I was a teenager and went to college, that I have to go that extra mile, I have to extend myself beyond the benefit of the doubt ‘cause I’m not going to be extended the benefit of the doubt, so, if I’m asked to X, I have to do X plus Y.

A white female academic and former board member remarked that when she was the only woman on one board, “it did feel like I was continually representing something, or being a token. And that didn’t feel nearly as good as being part of a group of two or three” as she was on another board she later served on.  She also mused: 

I was just trying to figure out whether there are ways in which women are more or less likely to want to serve on boards as men; or whether minority people are more or less likely? Whether they feel that they will have too heavy a burden because they’ll be expected to be responsible for womanhood or minorityhood? I don’t think that’s true of most boards in fact. But whether, before you’ve ever served on one you might think you were going to have to? I don’t know if that’s a concern for some potential board members . . . if so, I would hope people would be able to lay those worries to rest.

Several women also reported that they understood in some sense that whether they did well as the first female board member might influence whether or when another woman would be invited to join the board. One white female board member told us that she was the first woman on a particular corporate board, joining an African American male who was already on that board. She acknowledged that by the time she left the board, there were four female board members, then quipped, “I guess I didn’t mess up too badly.” She also commented, however, on the pressure that this placed on her:

I never really had a bad experience as a token. In fact, they seemed to be particularly curious in what I did think. And that put some pressure on—if you were speaking, you didn’t want to just blurt out stupid things. But I never really felt intimidated about asking questions, either. 

And this leads to an important caveat to our respondent’s narratives about their potential token status:  although we heard stories of the stresses associated with being the first and only female or minority board member, this narrative is in tension with our respondents’ professed comfort with their first and only status and the benefits that they perceive accompany these stresses. Many of our respondents tend to view themselves as pathbreakers—often the first and only female or minority at many important career stages. They exhibit a certain pride in the notion that they are highly qualified corporate directors, accustomed to their “outsider” status, and need no additional reassurance or support from the presence of other members of their demographic group. All report an ability to function as effective directors, even when the sole female or minority in the boardroom.

One respondent, an African American female director, gave a vivid version of this account, made especially powerful by its framing as a retelling of a conversation that she had just had with her son: 

A: Well I’ll answer that question [how it felt to be the only racial minority on a particular board] this way because I just had that conversation with my son last night, yesterday, who’s going to take a new job. He’s a recent graduate. I told him that the first thing you have to do is recognize that you have the job because you have the skills to do it, and throughout my life I have never gone into any situation thinking that I was a minority. I know I’m a minority, but I don’t go into any situation with that as a conscious part of it. Any situation that I’m in is because I’m there as a person, and I’m there because I have something to contribute, I have some skill, I have some expertise, and so that is the mindset that I took to the [name of company] board. I’m here because I have something that they wanted and it’s regulatory expertise and that’s what I’m here to provide, and so I never let being a woman or a minority come to the forefront and I think when you do that, it can put you at a disadvantage because that’s what you focus on and so when you say how was it, I never dwelled on that. I was there because they asked me to be there for a particular reason and that was the value that I brought to the board so it was not an issue for me, and I don’t think that they viewed that as an issue either. One of the things that I know happens when boards actively seek other members who don’t look like them, they’re not white and they’re not male; they’re at a point in their life that they recognize that they have to do things differently from a business standpoint. 

The paper contains numerous additional quotes highlighting this tension between our respondents’ recognition of the stresses associated with being the first and only female or minority in the boardroom and their apparent embrace of their “first and only” pathbreaker status. 

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