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Race, Interest, and the Anti-Transformation Cases Martha R University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2003 Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases Martha R. Mahoney University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Law and Race Commons, and the Law and Society Commons Recommended Citation Martha R. Mahoney, Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases, 76 S. Cal. L. Rev. 799 (2003). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. CLASS AND STATUS IN AMERICAN LAW: RACE, INTEREST, AND THE ANTI-TRANSFORMATION CASES MARTHA R. MAHONEY* I. IN T R OD U C T IO N ................................................................................ 800 II. COLOR AND POWER EVASION AT WORK ................................. 805 A. INDIVIDUALISM, COLOR EVASION, AND POWER EVASION ...... 806 B. WORK AND INSECURITY: UNSETTLING EVASION ..................... 810 III. CLASS, CONSCIOUSNESS, AND WHITENESS ........................... 817 A. CONCEPTS OF INEQUALITY AND SELF-INTEREST: CLASS AND "V ULGAR STATUS" .........................................................817 1. Exploitation, Oppositional Groups, and Solidarity ............ 820 2. Contemporary Concepts of Status ...................................... 823 B. "MAKING CLASS": AGENCY, WHITENESS, AND THE MAKING OF CLASS AND CONSCIOUSNESS ............................... 828 1. "Making Class" or Racialized Status Groups ..................... 829 2. Agency and Consciousness-Class Lived Within C om m unities ..................................................................... 832 3. Solidarity Stories-White Privilege Contested .................. 833 4. Class Accounts-Economic Interest, Morality, and the Claim of Harm to W hites .................................................. 840 * Professor, University of Miami School of Law. I am deeply indebted to the shared project and the insights of Ken Casebeer, whose thought appears in many forms in this article. I also gained from extensive comments by Lea Vander Velde; from the insights of Sandy Stimpson. Bob Zellner, Fran Ansley, Stephanie Wildman, Angela Harris, Joan Mahoney, Bill Mahoney, and Monte Piliawsky; and from the influence of Chuck Lawrence. Helpful suggestions came from Susan Sturm, Pat Gudridge, Terry Anderson, John Ely, Lynne Henderson, Vicki Schultz, Tamara Piety, Kim Scheppele, Clark Freshman, Ruth Witherspoon, Sylvia Law, Wythe Holt, and participants at faculty seminars at Harvard, Comell, Florida State University, and the University of Indiana-Indianapolis law schools; feminist legal theory seminars at Yale and Columbia law schools; and the Center for Social and Cultural Studies at the University of Miami. I am grateful for research assistance from Sue Ann Campbell, Barbara Cuadras, Keisha Richardson, Sanitha Narayan. Michelle Williams, and especially John Fisher. Any errors that remain are my own. SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:799 C. MAKING STATUS: THE DIFFICULTY OF DISCUSSING CLASS INL AW ..................................................................................... 84 2 1. Inadequate Categories-"Race," "Poverty," "Labor," and "E m ployee" ................................... ............................. 843 2. The Rehnquist Court Turns Class into Status in Labor L aw .................................................................................... 84 6 D. WHY "CLASS-BASED AFFIRMATIVE ACTION" Is NOT A BO UT C LA SS .......................................................................... 849 IV. BUSINESSMEN ARE [NOT] LIKE LABORERS: HIDDEN QUESTIONS OF CLASS IN THE LAW ...................................... 855 A. THE NATURALIZATION OF SCARCITY: PUBLIC EMPLOYEES AND THE "ZERO-SUM" GAME ................................................. 856 B. CLASS AND STATUS IN THE WORK CASES: REASONING FROM STOTTS TO ADARAND ...................................................... 861 C . INTEREST IN CONTEXT .............................................................. 867 1. H irin g ................................................................................. 8 6 8 2. Prom otions ......................................................................... 869 3 . L ay o ffs ............................................................................... 87 1 4 . C ontracting ......................................................................... 874 V. ANTI-TRANSFORMATION: THE MOVE FROM WORK TO P O L IT IC S....................................................................................... 876 A. CLASS QUESTIONS AND POLITICS ............................................. 876 B. DEFINING WHITE INTERESTS-COLOR AND POWER EVASION IN THE VOTING RIGHTS CASES ................................ 880 C. REDEFINING INTEREST: HIGHWAYS, LABOR, AND POLITICAL POW ER ................................................................... 884 VI. CONCLUSION: POWER, HARM, AND INTEREST ...................... 891 I. INTRODUCTION [C]Iass is a cultural as much as an economic formation...' There has been a recent resurgence of interest in class in legal scholarship.2 This development might have been predictable. Inequality in I. E. P.THOMPSON, THE MAKING OF THE ENGLISH WORKING CLASS 13 (1964). 2. For example, the University of Pennsylvania Law School recently hosted a conference on "Law and the Disappearance of Class" (November 2001). Courses on class and the law are taught at least at four law schools: U.C. Berkeley (Boalt Hall), the University of Miami, the University of Michigan, and Santa Clara University. A recent book coauthored by a law professor emphasized the continuing political importance of the white working class. See generally RuY TEIXEIRA & JOEL 2003] CLASS AND STATUS IN AMERICAN LAW America has grown sharply over the past two decades. 3 Working people face job tenure insecurity, massive shifts in work structures, and heavy debt.4 Indigent families have begun experiencing the termination of assistance from the state.5 Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a 6 way to confront inequality without confronting race. ROGERS, AMERICA'S FORGOTTEN MAJORITY: WHY THE WHITE WORKING CLASS STILL MATTERS (2000). There have been calls for more scholarship on class. See, e.g., Angela Harris, The Jurisprudence of Reconstruction, 82 CAL. L. REV. 741, 777 (1994), and new work emphasizing the importance and transformative potential of multiracial experience among workers, Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L.J. I, 67 (2000) (noting that "[wie may aspire to make the workplace a realm of equality on the basis of race, sex, and ethnicity, but the workplace remains a bastion of class inequality."). Many recent works discuss issues of affirmative action based on economic disadvantage. See generally RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION 83-120 (1996); R. Richard Banks, Meritocratic Values and Racial Outcomes: Defending Class-based College Admissions, 79 N.C. L. REV. 1029 (2001); Richard H. Fallon, Jr., Affirmative Action Based on Econonic Disadvantage, 43 UCLA L. REV. 1913 (1996); Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452 (1997) [hereinafter Malamud, Assessing Affirmative Action]; Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEx. L. REV. 1847 (1996) [hereinafter Malamud, Lessons and Caveats]; Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472 (1997). 3. See LAWRENCE MISHEL, JARED BERNSTEIN & JOHN SCHMITr, THE STATE OF WORKING AMERICA, 2000/2001 37-49 (2001) (noting that the last few decades have witnessed a historically large shift of economic resources from those at the bottom and middle of the income (or wage or wealth) scale to those at the top). "The result has been an increase in inequality such that the gap between the incomes of the well-off and those of everyone else is larger now than at any point in the postwar period." Id. at 48. Angela Harris argues: Inequality is not just an accidental byproduct of capitalism. It's capitalism's major product. And in contemporary America, that inequality seems to be increasing. The richest Americans keep getting an increasing share of the nation's wealth, while the rest of us are competing for an ever smaller share of the pie. Angela P. Harris, Beyond Equality: Power and the Possibility of Freedom in the Republic of Choice, 85 CORNELL L. REV. 1181, 1190 (2000). 4. See MISHEL, BERNSTEIN & SCHMITr, supra note 3, at 221-53 (discussing job instability and the growth of the contingent workforce); id. at 257-58, 278-80 (discussing burden of debt). 5. See, e.g., Alexandra Marks, Spike in Welfare Rolls Reignites Debate over Safety Net, CHRISTIAN SCI. MONITOR, Feb. 7, 2002, at 2 ("An analysis done by the National Campaign for Jobs and Income
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