CIVILRIGHTS WINTER 2002 JOURNAL

ALSO INSIDE: EQUATIONS: AN INTERVIEW WITH BOB MOSES FLYING HISTORY AS SENTIMENTAL EDUCATION WHILE WHERE ARE YOU REALLY FROM? ASIAN AMERICANS AND THE PERPETUAL FOREIGNER SYNDROME ARAB MANAGING THE DIVERSITY Lessons from the Racial REVOLUTION: BEST PRACTICES FOR 21ST CENTURY BUSINESS Profiling Controversy U.S. COMMISSION ON CIVIL RIGHTS CIVILRIGHTS WINTER 2002 JOURNAL The U.S. Commission on Civil Rights is an independent, bipartisan agency first established by Congress in 1957. It is directed to: • Investigate complaints alleging that citizens are being deprived of their right to Acting Chief vote by reason of their race, color, religion, sex, age, disability, or national origin, Terri A. Dickerson or by reason of fraudulent practices; • Study and collect information relating to discrimination or a denial of equal Managing Editor protection of the laws under the Constitution because of race, color, religion, sex, David Aronson age, disability, or national origin, or in the administration of justice; Copy Editor • Appraise federal laws and policies with respect to discrimination or denial of equal Dawn Sweet protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice; Editorial Staff • Serve as a national clearinghouse for information in respect to discrimination or Monique Dennis-Elmore denial of equal protection of the laws because of race, color, religion, sex, age, Latrice Foshee disability, or national origin; Mireille Zieseniss • Submit reports, findings, and recommendations to the President and Congress; • Issue public service announcements to discourage discrimination or denial of equal Interns protection of the laws. Megan Gustafson Anastasia Ludden In furtherance of its fact-finding duties, the Commission may hold hearings and issue Travis McClain subpoenas for the production of documents and the attendance of witnesses. Meredith Taylor Since the Commission lacks enforcement powers that would enable it to apply specific remedies in individual cases, it refers the many complaints it receives to the appropriate Design federal, state, or local government agency, or private organization for action. Michelle Wandres The Commission is composed of eight part-time Commissioners, four appointed by the President and four by Congress. A full-time Staff Director oversees the day-to-day activities of the Commission, headquartered in Washington, DC. The Staff Director is U.S. Commission on appointed by the President with the concurrence of a majority of the Commission’s Civil Rights members. The Commission has 51 Advisory Committees—one for each state and the District of Mary Frances Berry Columbia. Each is composed of citizens familiar with local and state civil rights issues. Chairperson The members serve without compensation and assist the Commission with its fact- finding, investigative, and information-dissemination functions. Cruz Reynoso Each of the Commission’s six regional offices coordinates the Commission’s Vice Chairperson operations in its region and assists the State Advisory Committees in their activities. Regional offices are in Washington, DC, Atlanta, Chicago, Kansas City, Denver, and Los Jennifer C. Braceras Angeles. Christopher Edley, Jr. The Commission’s Robert S. Rankin Civil Rights Memorial Library is situated in Peter N. Kirsanow Commission headquarters, 624 Ninth St., NW, Washington, DC 20425. Elsie M. Meeks The Commission and its State Advisory Committees have produced hundreds of Russell G. Redenbaugh reports and studies on national, regional, and local civil rights matters. Copies of these Abigail Thernstrom publications are available free to the public, as is a “Catalog of Publications,” by request to the Publications Office, U.S. Commission on Civil Rights, 624 9th Street, NW, Room Les Jin 600, Washington, DC 20425. Many can be downloaded from the Commission’s Web site. Staff Director Articles and other material contained herein do not necessarily reflect the policy of the Commission, but are offered to stimulate thinking and discussion about various civil U.S. Commission on rights issues. Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 voice (202) 376-8116 TTY www.usccr.gov CIVILRIGHTS US COMMISSION ON CIVIL RIGHTS JOURNAL WINTER 2002 VOLUME 6, NUMBER 1

History as Sentimental Education

4 EQUATIONS: AN INTERVIEW WITH BOB MOSES 24 Legendary civil rights activist Bob Moses has HOLY GROUND turned his attention to a surprising new by Gloria Jahoda goal: teaching poor kids algebra. Andrew Jackson pushed countless Indians out of Florida and Alabama, down a 8 road that forever became known FLYING WHILE as the Trail of Tears. ARAB: LESSONS FROM THE RACIAL 31 PROFILING THE DESTRUCTION CONTROVERSY OF THE KINGDOM by David Harris OF KONGO Using Arab or by David Lopes Muslim background The Portugese encounter or appearance to with Kongo began in profile for potential terrorists will almost wonder and ended certainly fail—even as it damages our in tragedy. enforcement efforts. 14 44 WHERE ARE YOU PEOPLE WITH REALLY FROM? ASIAN DISABILITIES: THE AMERICANS AND THE SLEEPING GIANT OF PERPETUAL FOREIGNER AMERICAN POLITICS SYNDROME by Jim Dickson by Frank H. Wu Despite laws requiring For Asian Americans, even accessibility, millions of seemingly innocent Americans are denied the questions can reveal how right to vote and to have precariously they are their votes counted. accepted.

40 DISENFRANCHISEMENT OF FELONS: THE MODERN-DAY VOTING RIGHTS CHALLENGE by Marc Mauer Nationwide, four 46 million Americans MANAGING THE DIVERSITY jailed or previously REVOLUTION: BEST PRACTICES FOR convicted of felonies 21ST CENTURY BUSINESS are forced to sit by David Aronson out elections: Are you ready? Here are 21st century Is it time to strategies for American companies to prepare reconsider? for the demographic revolution.

BOOK REVIEWS

72 The Psychology of Legitimacy 77 The Future of Immigrant Children, Reviewed by Peter Glick and Susan T. Fiske and What it Means for the United States Two books reviewed by Vivian Louie 75 The Anatomy of Racial Inequality Reviewed by Christopher H. Foreman, Jr. 82 The Color of Opportunity: Pathways to Family, Welfare, and Work Reviewed by Roger Waldinger

The Civil Rights Journal is published by the U.S. Commission on Civil Rights, as part of its clearinghouse responsibilities. Editorial inquiries and manuscript sub- missions should be directed to The Editor, Civil Rights Journal, U.S. Commission on Civil Rights, 624 Ninth St., NW, Washington, DC 20425. Articles and other material contained herein do not necessarily reflect USCCR policy but are offered to stimulate thinking and discussion about various civil rights issues. No permission is required to quote or reprint contents with the exception of those that are copyrighted by authors or from other publications. Use of funds for producing the Civil Rights Journal has been approved by the Director of the Office of Management and Budget.

2 Civil Rights Journal / Winter 2002 E DITOR’ S N OTE

he protection of civil liberties is a nec- and contradictory state laws, and focuses on essary prerequisite to the protection of the uncomfortable reality that incarceration Tcivil rights: without the freedom to rates differ by race, making those who have dissent, the possibility of redress rests on the been historically disenfranchised more magnanimity of the government rather likely to suffer the same fate today. Jim Dick- than on the authority of the governed. Civil son, by contrast, focuses on the practical dif- liberties provide the space in which and ficulties facing people with disabilities, and through which civil rights can be defended, calls for laws that provide better access to the most important of which is the freedom polling places. to discuss and to dissent. In other articles, Frank Wu examines the The articles and reviews in this issue of continuing prejudice faced by Asian Ameri- the Civil Rights Journal attempt to further the cans, David Lopes reflects on the history of discussion on a number of topics central to the Kingdom of Kongo, and Gloria Jahoda today’s policy debates. Chief among them is recounts the events that led to the dispos- the question of civil liberty in a time of war, session of Native Americans in the “Trail of particularly when one ethnic group is the Tears.” The book review section is rich, con- primary focus of public concern. In his arti- taining full-length reviews of several of the cle “Flying While Arab,” David Harris, a pro- most important works to be published over fessor of law at Toledo University, examines the last year or two in sociology, psychol- the evidence regarding the legal and practi- ogy, and political science. All of these arti- cal case for racial profiling. He finds the cles have in common a serious engagement practice not only morally objectionable but with the issues, a respect for the facts, and a likely to backfire, as the targeted group tac- readiness to confront, honestly and fairly, itly withdraws its full support for the system the arguments of opposing points of view. that renders it vulnerable. In that sense, they present a model of how Few people better represent the possibil- to conduct a debate in a democratic polity. ity of humane discussion than Bob Moses, If the business of America is business, as the civil rights activist who first gained Herbert Hoover first said, then one of the renown in the 1960s as leader of the Student best ways to ensure that all of its people Non-Violent Coordinating Committee. His have a chance to participate in the American characteristically modest and wise vision is dream is by making sure that all of its people exhibited in an interview in this issue. have the chance to participate fully in the Though overshadowed by the terrorist nation’s economic life. The article, “Manag- attack on the U.S. in September 2001, voting ing the Revolution: Best Practices for 21st issues remain a paramount concern for Century Business,” surveys the field and many. Two articles in this issue focus on that attempts to bring some of the current aca- topic. Mark Mauer, the assistant director of demic discussion about prejudice and dis- the Sentencing Project, argues that felons crimination to bear on life in corporate who have served their time deserve to have America. It also attempts to provide clear their right to vote restored. He surveys the and specific ideas about how to best manage landscape, finding a patchwork of uneven an increasingly diverse population. C R

Winter 2002 / Civil Rights Journal 3 EquationsRadical An Interview with BOB MOSES

4 Civil Rights Journal / Winter 2002 Legendary is to Bob Moses

what dull is to thud; the adjective has

been used so often in proximity to his name it

seems to have become a part of it. Moses first

gained national attention in the early 1960s, when

he was one of the co-founders of the Student Non-

Violent Coordinating Committee. He and many of

his co-workers were beaten and arrested for their

activities organizing African Americans in the Deep

South, but no matter how extreme the situation,

Moses never lost the calm, stoic demeanor for

which he became known. For the past 20 years,

Moses has turned his attention to a surprising but,

he argues, no-less vital project: generating com-

munity interest in promoting math literacy. Today,

the Algebra Project serves 10,000 students in 28

cities nationwide. Moses runs the Project out of its

headquarters in Cambridge, Massachusetts, but

ht:RnCesar Photo: Ron teaches in Jackson, Mississippi, during the school

year. CRJ spoke with Moses in late October 2001.

Winter 2002 / Civil Rights Journal 5 arose, who was taking algebra, and why. We wrote a letter to the parents of every incoming seventh-grade student and asked them what they thought. Universally they said, “Well my kid should take algebra, but I’m not sure every kid should.” On that basis, we offered it to every child. That was the beginning of the Project, with the idea that we would put a floor under every child and develop math literacy—which wasn’t being done at that time.

How is the Algebra Project similar to the kind of community organizing you did in the 1960s? In the 1960s, we were using the right to vote as an organ- izing tool. The 1957 Civil Rights Act provided a minimum amount of crawl space that allowed us to organize around the right to vote. When we had been doing direct organ- izing in Mississippi, when we had been doing the freedom rides, we got slapped with long jail sentences and heavy fines, and we couldn’t sustain that. But as long as we were focused on the right to vote, they couldn’t put us in jail and throw away the key. We were using the right to vote as a lever for broad political access. In the Algebra Project, we’re using math literacy to achieve the broad goal of eco- nomic and programmatic access, but we’re using it as an organizing tool. WHAT IS STILL RADICAL ABOUT WHAT Another connection is that the meeting place became a real tool for us. When we think of the civil rights move- WE ARE DOING TODAY IS THAT WE ARE ment, we think of eloquent leaders speaking to masses of people in public spaces, but just as important was empow- PAYING ATTENTION TO THE BOTTOM, AND ering people. The question became, how do we empower ATTEMPTING TO LIFT THE BOTTOM. the people we were working with? and we came up with this format that allowed them to discuss issues in small groups and then go out and see what they could do about What is the Algebra Project? those issues. The sharecroppers had a lot of people advocat- One way to think about it is that it is establishing a “math ing for them, but it was only once they demanded the right literacy floor” for poor black and Latino students in urban to vote that it happened. In the Algebra Project, we’re work- and rural schools. The idea is that the computer age has ing the demand side of the equation. We’re seeing young ushered in a math component, in the way that the indus- people who participated in the Project earlier in their lives trial age brought in a need for reading and writing. Literacy becoming math literacy workers. became necessary for citizenship, for participation in poli- tics. So today the focus is on putting a floor under this tar- How many people does the Project reach? get population, so that students have choices, so that it isn’t We’ve got programs in New York City, Boston, New Jersey, a question that they can’t access certain domains of knowl- Baltimore, Chicago, and California. We also have projects in edge. So far, the focus has been on middle schools, on train- the South, in Louisiana, Arkansas, Georgia, South Carolina, ing teachers. We’ve had our best successes down South, in and North Carolina. This year, we’re reaching about 10,000 states from North Carolina to Louisiana. students, in about 120 schools.

How did you first get the idea to focus on math? Was How is the Project grown, how is it propagated? it a sort of eureka moment? Mostly people come to us, as an organization, they make No, it happened gradually. In my family, I was responsible for contact, say they want to do this project. Our first our kids’ math education. We have two boys and two girls, response is to see if we can get a local group to sponsor and came back to this country from Africa in 1976. Our old- and own it. We’re not trying to run the Project at the est kid was in M.L. King Open School in Cambridge, and I grassroots. We want to go where the interest is. But of was back in graduate school. When she hit eighth grade, they course we want them [the prospective teachers] to go weren’t offering algebra. That year I won a McCarthur, so I through training and everything. Last summer in was working with her, and the teacher said, “Why don’t you Arkansas, we had about 80 teachers involved in the train- come in and help a couple of more kids?” So the question ing. So now we’re training the trainers.

6 Civil Rights Journal / Winter 2002 Have you been measuring the results of the program? It’s a refinement of what has come down as experiential Mostly the evaluation is being done by the Program Evalu- learning from Dewey, Piaget, Lewin, and other people in ation Group at Leslie College. They’ve been looking at us progressive education. I studied under Willard Van Orman and doing research and evaluations for eight or nine years. Quine at Harvard, and Quine said that elementary math Last year, they looked in depth at one San Francisco school. and logic get off the ground by the regimentation of ordi- This year, they’re at Lanier High School here in Jackson nary discourse, that you take ordinary language and [Miss.], and they go to the Northeast next year. straightjacket it. So I took this concept into the domain of If you look at the data, they all show the same thing. If experiential learning, where you have an event, then you you do a certain number of things, the Project can work, have reflection on the event, conceptualization of the and the students come out with higher grades. You’ve got to event, and finally the application. Quine fills in the train and support the teachers, which takes two or three process between reflection and conceptualization. It’s a years for them to get comfortable with the pedagogy. You’ve leap from describing an event in ordinary street language got to get buy-in from the students, you have to get young to describing it in language which focuses on the features people involved, and you have to get the community and of the objects as opposed to the objects themselves. For parents involved in some functional way. example, you focus on the speed or acceleration or trajec- tory of the car, not the car itself. Were you inspired at all by the Latin American exam- ple of the “pedagogy of the oppressed,” which is based Finally, a couple of big picture questions. As you on the notion that you need to impart not simply a set look back over the past three or four decades, how of skills or base of information, but a sort of critical satisfied are you with how far things have come? political and personal consciousness about society? What I’ve felt, up to September 11, was that this was a Actually, that kind of pedagogy we had been developing on good country to struggle in. You could have a good life our own, in the civil rights movement, particularly in the and struggle. I wasn’t particularly optimistic that in my Mississippi theater, where we were really trying to work the lifetime you would see these issues of race and class turned demand side with sharecroppers. We were trying to figure around, but I had the feeling that you could struggle for out how to get them to change, to look at struggle as a part them. Now I think it’s going to be harder in this country, of their lives. Somebody like Fannie Lou Hammer comes and I’m not sure yet what’s going to happen. The country out of that tradition. itself is tightening up, in response to terror and to the threat of terror, and that always hits our target population How do you answer those who say that what you’re first. So the first thing you see when you come in here at doing now isn’t really radical? Lanier is a recruiting sign, and you see more kids out join- Trying to get the right to vote isn’t necessarily radical either; ing the ROTC. I’m not sure where this is headed. it was getting those people the right to vote that was radical. The political configuration was that they were at the bot- You’ve always stood in opposition to the main- tom. We weren’t content to register middle-class blacks. stream, of course, but also, at least implicitly, to We were trying to reach those who were really functioning some of the major civil rights groups and civil as serfs in our society. And what is still radical about what rights figures. Where do you believe you are now? we are doing today is that we are paying attention to the We were in opposition to the more mainstream figures on bottom, and attempting to lift the bottom. Because we policy issues. If you were working in the grassroots on pol- know from the 1960s that if you shift the bottom every- icy issues, as we were in the Freedom Democratic Party, thing shifts. Society has to reconfigure itself when you’ve then inevitably you get into direct conflict with the civil got this new mix, these new people at the table. If you’re rights organizations that have forged alliances with major just looking for a few young people with math talent, policy groups and institutions. Now, today, the issue is the that’s already been done for quite a while. What’s radical black middle class, which has taken on the role of manag- is using algebra as an organizing tool, as a way to gain ing schools and political institutions that deal with black traction in the community. It’s not as dangerous as people as a whole. We bump up against that, because what demanding the right to vote, but in terms of building rela- we’re doing is a critique of that kind of management. This tionships, learning how to struggle, and finding value in a issue of raising the floor is an issue because it’s their floor. particular kind of work, the effort is similar. The kids inter- They are the ones managing these institutions that have nalize a concept of themselves as knowledge workers, these floors. So insofar as they not really willing to develop which is the key to becoming productive, and not just their own critiques that what’s going on now isn’t accept- thinking of their future in terms of a dead-end job at able, you are in various stages of conflict. C R McDonald’s. FOR MORE INFORMATION ABOUT THE ALGEBRA PROJECT, VISIT ITS You have some very specific ideas about how to WEB SITE AT WWW.ALGEBRA.ORG teach algebra. How did they evolve?

Winter 2002 / Civil Rights Journal 7 Flying While Arab: LESSONS FROM THE RACIAL PROFILING CONTROVERSY by David Harris

n the aftermath of the September 11 tragedies in New York and Washington, DC, we Americans have heard countless times that our country has “changed forever.” In many ways, especially in terms of national and per- Isonal security, this is quite true. Americans have always assumed that terrorism and other violent manifestations of the world’s problems did not and would never happen here, that our geographic isolation by the Atlantic and Pacific Oceans protected us. Indeed, since the Civil War, the United States has experienced no sustained violence or war on its own soil. Sadly, we know now that we are vulnerable, and that like countries all over the world, we must take steps to protect ourselves. This is the new reality that Americans find themselves adjusting to: searches and inspections of ourselves and our belongings when we enter public buildings and areas, such as government offices, sports stadiums, and airport con- courses; increased presence of law enforcement and even military personnel; enhanced police powers and curtailed civil liberties; and new powers and tactics our government will use to deal more strictly with foreigners and immi- grants. While some of these changes amount to little more than inconveniences, others—particularly changes in the law that limit individual freedom while expanding govern- ment power—are in fact major changes in our way of life and the core values and meaning of American society. The U.S. Congress has already passed a sweeping piece of legis- lation, increasing government power over everything from wiretaps, e-mail, formerly secret grand jury information, to the detention and trial of noncitizens. We know that the United States is a nation of immi- grants—that, in many ways, immigrants built our great the changes that have taken place and will continue because nation. We know that the immigrant experience has, in many of the events of September 11—changes in the very idea of ways, been at the core of the American experience, along with what America is, and in what it will be in the future. the experiences of African Americans liberated from slavery. One of these changes has been particularly noticeable— The diversity and energy that immigrants have brought to both because it represents a radical shift in what we did prior our country has been, and continues to be, one of our great- to September 11, and because it also continues a public dis- est strengths. But, we also know that we have sometimes dealt cussion that was taking place in our country before that terri- harshly and unfairly with immigrants and noncitizen resi- ble day. Racial profiling—the use of race or ethnic appearance dents, especially in times of national emergency and crisis. as a factor in deciding who merits police attention as a suspi- Thus, it is critical that we try to understand the implications of cious person—has undergone a sudden and almost complete

8 Civil Rights Journal / Winter 2002 rehabilitation. Prior to September 11, many Americans had innocent civilians; people were shocked, stunned, and afraid. recognized racial profiling for what it is—a form of institu- And they knew that all of the hijackers were Arab or Middle tional discrimination that had gone unquestioned for too Eastern men carrying out the deadly threats of Osama bin long. Thirteen states had passed anti-profiling bills of one type Laden’s al Qaeda terrorist network based in the Middle East, or another, and hundreds of police departments around the which of course claims Islam as its justification for the attacks country had begun to collect data on all traffic stops, in order and many others around the world. Therefore, many said that to facilitate better, unbiased practices. On the federal level, it just makes sense to profile people who looked Arab, Muslim, Congressman John Conyers, Jr., of Michigan and Senator Rus- or Middle Eastern. After all, “they” were the ones who’d car- sell Feingold of Wisconsin had introduced the End Racial Pro- ried out the attacks and continued to threaten us; ignoring filing Act of 2001, a bill aimed at directly confronting and these facts amounted to some kind of political correctness run reducing racially biased traffic stops through a comprehensive, amok in a time of great danger. management-based, carrot-and-stick approach. But if the renewed respectability and use of profiling was September 11 dramatically recast the issue of racial profil- one of the ways in which September 11 changed things, we ing. Suddenly, racial profiling was not a discredited law might also notice that the “new” racial profiling demonstrated the truth of an old saw: the more things change, the more they stay the same. We should remember that racial profiling of African Americans and Latinos also originated in a war— the metaphorical “war on drugs”—and was justified with the same arguments. But even more importantly, we should learn from what we now know were the grand mistakes of profiling in the last 10 years. If we do that, we will see that using Arab or Muslim background or appearance to profile for potential terrorists will almost certainly fail—even as it damages our enforcement efforts and our capacity to collect intelligence.

After 9/11, racial profiling was no longer seen as a discredited law enforcement strategy, but as a vital tool to assure national security, especially in airports.

History As in almost any serious policy inquiry, a look at the history of our country can help us attain a proper perspective on how to view what we do now. Unfortunately, that history gives us reasons to feel concern at this critical juncture. Any

Photo: Getty Images serious appraisal of American history during some of the key periods of the 20th century would counsel an abundance of caution; when we have faced other national security crises, we have sometimes overreacted—or at the very least acted more out of emotion than was wise. In the wake of World War I, the infamous Palmer Raids enforcement tactic that alienated and injured citizens while it resulted in the rounding up of a considerable number of did little to combat crime and drugs; instead, it became a vital immigrants. These people were deported, often without so tool to assure national security, especially in airports. The pub- much as a scintilla of evidence. During World War II, tens of lic discussion regarding the targets of profiling changed too— thousands of Japanese—immigrants and native born, citizens from African Americans, Latinos, and other minorities sus- and legal residents—were interned in camps, their property pected of domestic crime, especially drug crime, to Arab confiscated and sold off at fire-sale prices. To its everlasting Americans, Muslims, and others of Middle Eastern origin, who shame, the U.S. Supreme Court gave the internment of the looked like the suicidal hijackers of September 11. In some Japanese its constitutional blessing in the infamous Korematsu respects, this was not hard to understand. The September 11 case. It took the United States government decades, but even- attacks had caused catastrophic damage and loss of life among tually it apologized and paid reparations to the Japanese. And

Winter 2002 / Civil Rights Journal 9 All of this ought to encourage us not to leap forward with racial or ethnic profiling, but to hesitate before we do.

Categorical Thinking We must hope that we have learned the lessons of this his- tory—that the emotions of the moment, when we feel threatened, can cause us to damage our civil liberties and our fellow citizens, particularly our immigrant populations. And it is this legacy that should make us think now, even as we engage in a long and detailed investigation of the Sep- tember 11 terror attacks. As we listen to accounts of that investigation, reports indicate that the investigation has been strongly focused on Arab Americans and Muslims. What’s more, private citizens have made Middle Eastern appearance an important criterion in deciding how to react to those who look different around them. Many of these reports have involved treatment of persons of Middle East- ern descent in airports. In itself, this is not really surprising. We face a situation in which there has been a terrorist attack by a small group of sui- Photo: Getty Images Constant efforts to stop, question, and search people who “look like” suspects, the vast majority of whom are hard-working, tax-paying citizens, will alienate the very ethnic groups whose cooperation we most need to win this fight.

during the 1950s, the Red Scare resulted in the ruining of lives cidal hijackers, and as far as we know, all of those involved and careers and the jailing of citizens, because they had had were Arabs and Muslims and had Arabic surnames. Some or the temerity to exercise their constitutionally protected rights all had entered the country recently. Given the incredibly to free association by becoming members of the Communist high stakes, some Americans have reacted to Middle Eastern- Party years or even decades before. ers as a group, based on their appearance. In a way, this is Hopefully, we can see the common thread that runs understandable. We seldom have much information on any through these now notorious examples: an apprehension of of the strangers around us, so we tend to think in broad cat- danger to the country not only from the outside but from a egories like race and gender. When human beings experience group of people within who are identified racially, ethni- fear, it is a natural reaction to make judgments concerning cally, or politically with those thought to pose the threat, our safety based on these broad categories, and to avoid those and a willingness to take measures that sweep widely who arouse fear in us. This may translate easily into a type of through the identified group—more widely than the threat racial and ethnic profiling, in which—as has been reported— might justify. (Of course, we have also learned that these passengers on airliners refuse to fly with other passengers threats have been wildly exaggerated; for example, the dis- who have a Middle Eastern appearance. covery of government documents more than four decades after the internment of the Japanese showed that the gov- Use of Race and Ethnic Appearance in Law ernment misled the courts by intentionally withholding crit- Enforcement ical information that contradicted official efforts to make the case for a sufficiently severe threat to justify the intern- The far more worrying development, however, is the possi- ment.1) The threat we face now bears many similarities: a bility that profiling of Arabs and Muslims will become stand- danger from overseas posed by one group, and an identified ard procedure in law enforcement. Again, it is not hard to group in the United States that has come under suspicion. understand the impulse; we want to catch and stop these sui-

10 Civil Rights Journal / Winter 2002 cidal hijackers, every one of whom fits the description of Arab minorities, the “hit rates”—the rates of searches that suc- or Muslim. So we stop, question, and search more of these ceeded in finding contraband like drugs or guns—were actu- people because we believe it’s a way to play the odds. If all the ally lower for minorities than were the hit rates for whites, September 11 terrorists were Middle Easterners, then we get who of course were not apprehended by using a racial or eth- the biggest bang for the enforcement buck by questioning, nic profile. That’s right: when police agencies used race or searching, and screening as many Middle Easterners as possi- ethnic appearance as a factor—not as the only factor but one ble. This should, we think, give us the best chance of finding factor among many—they did not get the higher returns on those who helped the terrorists or those bent on creating fur- their enforcement efforts that they were expecting. Instead, ther havoc. they did not do as well; their use of traditional police meth- But we need to be conscious of some of the things that we ods against whites did a better job than racial profiling, and have learned over the last few years in the ongoing racial pro- did not sweep a high number of innocent people into law filing controversy. Using race or ethnic appearance as part of enforcement’s net. a description of particular suspects may indeed help an inves- The reason that this happened is subtle but important: tigation; using race or ethnic appearance as a broad predictor race and ethnic appearance are very poor predictors of behav- of who is involved in crime or terrorism will likely hurt our ior. Race and ethnicity describe people well, and there is investigative efforts. All the evidence indicates that profiling absolutely nothing wrong with using skin color or other fea- Arab Americans or Muslims would be an ineffective waste of tures to describe known suspects. But since only a very small law enforcement resources that would damage our intelli- percentage of African Americans and Latinos participate in gence efforts while it compromises basic civil liberties. If we the drug trade, race and ethnic appearance do a bad job iden- want to do everything we can to secure our country, we have tifying the particular African Americans and Latinos in whom to be smart about the steps we take. police should be interested. Racial and ethnic profiling caused As we think about the possible profiling of Arabs and Mus- police to spread their enforcement activities far too widely lims, recall the arguments made for years about domestic and indiscriminately. The results of this misguided effort have efforts against drugs and crime. African Americans and Lati- been disastrous for law enforcement. This treatment has nos are disproportionately involved in drug crime, propo- alienated African Americans, Latinos, and other minorities nents of profiling said; therefore concentrate on them. Many from the police—a critical strategic loss in the fight against state and local police agencies, led by the federal Drug crime, since police can only win this fight if they have the full Enforcement Administration, did exactly that from the late cooperation and support of those they serve. And it is pre- 1980s on. We now know that police departments in many cisely this lesson we ought to think about now, as the cry goes jurisdictions used racial profiling, especially in efforts to get up to use profiling and intensive searches against people who drugs and guns off the highways and out of the cities. For look Arab, Middle Eastern, or Muslim. example, state police in Maryland used a profile on Interstate 95 during the 1990s in an effort to apprehend drug couriers. Profiling to Catch Terrorists According to data from the state police themselves, while only 17 percent of the drivers on the highway were African Using race, ethnic appearance, or religion as a way to decide American, over 70 percent of those stopped and searched who to regard as a potential terrorist will almost surely pro- were black. Statistics from New Jersey, New York, and other duce the same kinds of results: no effect on terrorist activity; jurisdictions showed similar patterns: the only factor that pre- many innocent people treated like suspects; damage to our dicted who police stopped and searched was race or ethnic- enforcement and prevention efforts. ity.2 No other factor—not driving behavior, not the crime rate Even if the suicide hijackers of September 11 shared a par- of an area or neighborhood, and not reported crimes that ticular ethnic appearance or background, subjecting all Mid- involved persons of particular racial or ethnic groups— dle Easterners to intrusive questioning, stops, or searches will explained the outcomes that showed great racial or ethnic have a perverse and unexpected effect: it will spread our disproportionalities among those stopped and searched. enforcement and detection efforts over a huge pool of people But as we look back, what really stands out is how ineffec- who police would not otherwise think worthy of attention. tive this profile-based law enforcement was. If proponents of The vast majority of people who look like Mohammed Atta profiling were right—that police should concentrate on and the other hijackers will never have anything to do with minorities because criminals were disproportionately minori- any kind of ethnic or religious extremism. Yet a profile that ties—focusing on “those people” should yield better returns includes race, ethnicity, or religion may well include them, on the investment of law enforcement resources in crime drawing them into the universe of people who law enforce- fighting than traditional policing does. In other words, using ment will stop, question, and search. Almost all of them will profiles that include racial and ethnic appearance should suc- be people who would not otherwise have attracted police ceed more often than enforcement based on other, less attention, because no other aspect of their behavior would sophisticated techniques. In any event, it should not succeed have drawn scrutiny. Profiling will thus drain enforcement less often than traditional policing. But in fact, in depart- efforts and resources away from more worthy investigative ments that focused on African Americans, Latinos, and other efforts and tactics that focus on the close observation of

Winter 2002 / Civil Rights Journal 11 gating people who “look suspicious” will often lead officers down the wrong path; the key to success is to observe behav- ior. Anyone who simply looks different may seem strange or suspicious to the untrained eye; the veteran law enforcement officer knows that suspicious behavior is what really should attract attention and investigation. Thus focusing on those who “look suspicious” will necessarily take police attention away from those who act suspicious. Even in the current cli- mate, in which we want to do everything possible to prevent another attack and to apprehend those who destroyed the World Trade Center and damaged the Pentagon, law enforce- ment resources are not infinite. We Americans must make decisions on how we run our criminal investigation and pre- vention efforts that move us away from doing just anything, and toward doing what is most effective. Third, if observation of suspicious behavior is one of law enforcement’s two important tools, using profiles of Arabs, Muslims, and other Middle Easterners can damage our capac- ity to make use of the other tool: the gathering, analysis, and use of intelligence. There is nothing exotic about intelligence; Photo: Getty Images Using Arab or Muslim background or appearance to profile for potential terrorists will almost certainly fail—even as it damages enforcement efforts and our capacity to collect intelligence.

behavior—like the buying of expensive one-way tickets with it simply means information that can be useful in crime fight- cash just a short time before takeoff, as some of the World ing. If we are concerned about terrorists of Middle Eastern ori- Trade Center hijackers did. gin, among the most fertile places from which to gather intel- This has several important implications. First, just as hap- ligence will be the Arab American and Muslim communities. pened with African Americans and Latinos in the war on If we adopt a security policy that stigmatizes every member of drugs, profiling of Arabs and Muslims will be overinclusive— these groups in airports and other public places with intrusive it will put many more under police suspicion of terrorist stops, questioning, and searches, we will alienate them from activity than would otherwise be warranted. Almost all of the enforcement efforts at precisely the time we need them these people will be hard-working, tax-paying, law-abiding most. And the larger the population we subject to this treat- individuals. While they might understand one such stop to ment, the greater the total amount of damage we inflict on be a mere inconvenience that they must put up with for the law-abiding persons. sake of national security, repetition of these experiences for And of course the profiling of Arabs and Muslims assumes large numbers of people within the same ethnic groups will that we need worry about only one type of terrorist. We must lead to resentment, alienation, and anger at the authorities. not forget that, prior to the attacks on September 11, the Second, and perhaps more important, focusing on race most deadly terrorist attack on American soil was carried out and ethnicity keeps police attention on a set of surface details not by Middle Easterners with Arabic names and accents, but that tells us very little and draws officers’ attention away from by two very average American white men: Timothy McVeigh, what is much more important and concrete: behavior. The a U.S. Army veteran from upstate New York, and Terry two most important tools law enforcement agents have in Nichols, a farmer from Michigan. Yet we were smart enough preventing crime and catching criminals are observation of in the wake of McVeigh and Nichols’ crime not to call for a behavior and intelligence. As any experienced police officer profile emphasizing the fact that the perpetrators were white knows, what’s important in understanding who’s up to no males. The unhappy truth is that we just don’t know what good is not what people look like, but what they do. Investi- the next group of terrorists might look like.

12 Civil Rights Journal / Winter 2002 Race or Ethnicity As Just One Factor Among Many? was not the first, but the second attempt to destroy those buildings; their first attempt, in 1993, was unsuccessful, and In many discussions of profiling, the question some raise is they watched, waited, and planned for eight years to try again. not whether to use race or ethnic appearance, but how. Pro- With enemies of such craftiness and determination, it seems ponents and defenders of racial and ethnic profiling have extremely unlikely that they will use people for their next argued that profiling would be both acceptable and effective attack who look like exactly what we are looking for. Rather, if race or ethnic appearance was not the only factor that indi- they will shift to light-skinned people who look less like Arabs cated suspicion, but just one factor among many. The idea is or Middle Easterners, without Arabic names, or to people who that race and ethnic appearance should never be the only fac- are not Middle Easterners at all, such as individuals from tors that prompt suspicion, but could be useful if they are part African nations or the Philippines. (In both places, there are of the whole picture that also includes behavior. Are there, in significant numbers of Muslims, a small but significant num- fact, conditions under which it might make sense to treat ber of whom have been radicalized.) This, of course, will put people differently according to their race or ethnic appear- us back where we started, and racial or ethnic appearance will ance, as long as it is just one factor among many? become a longest-of-long-shot, almost certainly an ineffective Our prior experience with profiling counsels against this predictor at best, and a damaging distracting factor at worst. approach. Despite what many believe, racial profiling has almost never involved situations in which police used race as Conclusion the only factor in deciding which drivers or pedestrians to stop. In fact, it would be surprising if this were ever true. The terrorist attacks in New York and Washington, DC, Human motivation is far too complex in any given situation present us with many difficult choices that will test us. We to be based on one fact; moreover, even the thickest, most will have to ask ourselves deep questions: Who are we, as a bigoted member of a police organization would know better nation? What is important to us? What values lay at the than to simply stop people based on race. And the numbers core of our Constitution and our democracy? How will we of drivers and pedestrians in the world would make this find effective ways to secure ourselves without giving up impossible anyway; as Justice Robert Jackson said many years what is best about our country? The proper balance ago, when he was the attorney general of the U.S., traffic laws between safety and civil rights will sometimes be difficult to and violators of those laws are so numerous that police must see. But we should not simply repeat the mistakes of the inevitably choose between violators when deciding against past as we take on this new challenge. Only our adversaries whom to enforce the law. would gain from that. C R But even if race or ethnicity is just one factor among oth- ers, it still presents dangers. Using race or ethnicity for pur- DAVID HARRIS IS BALK PROFESSOR OF LAW AND VALUES AT THE poses other than describing a particular suspect or suspects UNIVERSITY OF TOLEDO COLLEGE OF LAW AND SOROS SENIOR means that we must accept that race or ethnicity can become JUSTICE FELLOW. HE IS THE AUTHOR OF PROFILES IN INJUSTICE: the dominant or most important factor among all of the oth- WHY RACIAL PROFILING CANNOT WORK, THE NEW PRESS, 2002. ers. And since people remain likely to attribute suspicion to those different from themselves in the broad categorical ways References discussed earlier, we end up with race or ethnicity not just as an additional, sharpening factor as we focus suspicion, but as 1 See Korematsu v. United States 584 F. Supp. 1406 (N.D. Cal. the factor that for all practical purposes directs our actions as 1984); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. we decide who to stop, question, and search. This, of course, Wash. 1986), aff’d in part and rev’d in part, 828 F.2d 591 (9th Circuit, 1987). brings us back to the pillars of traditional policing: race or ethnic appearance may be a valuable descriptor, but it is not 2 For Maryland numbers, see John Lamberth, testimony before behavior. It tells us nothing about what people do or have the Congressional Black Caucus, 1998, accessed at www. lamberthconsulting.com/downloads/cbc_presentation.doc; see done, and instead distracts us from observing behavior. also Wilkins v. Maryland State Police, No. CCB-93-468 (order of Second, we cannot discount the obvious skill and determi- Apr. 22, 1997) and Maryland State Conference of NAACP nation of the adversaries we face in this struggle. The Septem- Branches, et al. v. Maryland Department of State Polic, et al., 72 ber 11 attacks made clear that the al Qaeda terrorists were not F. Supp 2d 560 (September 1999). For New Jersey, see John Lam- wild, unguided fanatics. Rather they showed a high degree of berth, “Revised Statistical Analysis of the Incidence of Police intelligence and cunning, spotting and taking advantage of Stops and Arrests of Black Drivers/Travelers on the New Jersey unnoticed weaknesses in our immigration and aviation secu- Turnpike Between Exits or Interchanges 1 and 3 from the Years rity systems. They showed the ability and the patience for 1988 through 1991.” November 1994, accessed at www. long-range planning and careful action, as well as strict self- lamberthconsulting.com/research_articles.asp. For New York, discipline. All of this is, of course, in addition to a belief in see Eliot Spitzer, Attorney General of the State of New York, their own cause so strong that they were willing to sacrifice “The New York Police Department’s ‘Stop and Frisk’ Practices: A Report to the People of the State of New York,” 1999, accessed their own lives to attain their goals. And we cannot forget at www.oag.state.ny.us/press/reports/stop_frisk/stp_frsk.pdf. that the attack on the World Trade Center on September 11

Winter 2002 / Civil Rights Journal 13 Where are you REALLY Asianfrom? Americans and the Perpetual Foreigner Syndrome by Frank H. Wu

“Where are you from?” is a question I like answering. “Where are you really from?” is a question I really hate answering. “Where are you from?” is a question we all routinely ask one another upon meeting a new person. “Where are you really from?” is a question some of us tend to ask others of us very selectively.

or Asian Americans, the questions frequently come paired like that. Among ourselves, we can even joke nervously about how they just about define the Asian American experience. More than anything else that unifies us, everyone with an Asian face who lives in America is Fafflicted by the perpetual foreigner syndrome. We are figuratively and even lit- erally returned to Asia and ejected from America. Often the inquisitor reacts as if I am being silly if I reply, “I was born in Cleve- land, and I grew up in Detroit,” or bored by a detailed chronology of my many moves around the country: “Years ago, I went to college in Baltimore; I used to practice law in San Francisco; and now I live in Washington, DC.” Sometimes she reacts as if I am obstreperous if I return the question, “And where are you really from?” People whose own American identity is assured are perplexed when they are snubbed in this manner. They deserve to know why “where are you really from?” is so upsetting. My white friends of whom I have asked the question are amused at best and befuddled at worst, even if one of their grandparents was an immigrant or all of them once were. They deserve to know why “where are you really from?” is so upsetting to Asian Americans even if it carries no offen- sive connotations to them.

14 Civil Rights Journal / Winter 2002 © Najlah Feanny/CORBIS SABA Like many other people of color (or a few whites who have marked accents) who share memories of such encounters, I know what the question “where are you really from?” means, even if the person asking it is oblivious and regardless of whether they are aggressive about it. Once again, I have been mistaken for a foreigner or told I cannot be a real American. The other questions that follow in the sequence make the subtext less subtle. Assuming that I must be “really from” someplace else and not here, even pausing for the prelimi- nary “where are you really from?” some people proceed to ask me: “How long have you been in our country?” “Do you like it in our country?” “When are you going back?” and “Do you have the chance to go home often?” I am asked these questions with decreasing frequency over time but still too often, and I am surprised at the contexts in which they con- tinue to pop up. When I give a speech, every now and then a nice person will wait to chat with me and with utter sincerity and no hint of irony, start off by saying, “My, you speak English so well.” I am tempted to reply, “Why, thank you; so do you.” I don’t suppose that such a response would make my point to anybody but myself. I am disappointed by these tire- some episodes because strangers have zeroed in on my race and seem to be aware of nothing else. Taken together, their questions are nothing more than a roundabout means of ask- ing what they know could not be directly said, “What race are you?” Their comments imply that I am not one of “us” but one of “them.” I do not belong as an equal. My heart must be somewhere else rather than here. I am a visitor at best, an intruder at worst. I must know my place, and it is not here. But I cannot even protest, because my complaint exposes me as an ingrate. I don’t appreciate the opportunities I have been given. People who know nothing about me have an expectation of ethnicity, as if I will give up my life story as an example of exotica. A few people, I suspect, ask where we are from out of a naiveté blended with malice. If pressed about my origins, I answer that my parents came from China, lived in Taiwan, and then came here as graduate students in the 1950s. My interlocutors sometimes say, “Oh, I thought so,” and end the exchange. They have placed me in their geography of race and somehow they know all they need to know. They must feel that they have gleaned an insight into me by knowing where I am “really” from and they can fit me into their racial world order. What makes the incidents comical is that the person wait- ing in line, the clerk behind the counter, the stranger on the street, and whoever else turns around, leans over, or pulls me aside to ask “where are you really from?” does so as if they are asking me something I have not been asked before. They do not know that they are reenacting a hackneyed scenario. Other people, I suppose, ask Asian Americans where they are really from because they sincerely would like to know about China or Asia, or they would like to show off what they already know. They are compelled to tell me that they went to China for a vacation last year and saw the Great

Winter 2002 / Civil Rights Journal 15 Wall or they ate at a Chinese restaurant where they espe- ally or where they are coming from, so to speak. For that cially liked the food. They may want to ask if it is really true, rare individual, asking “where are you really from?” is what they say about Asians, or there may be a phrase they’d intended as an invitation to a dialogue about what it means like translated. that each of us has come here from elsewhere and where we Asians and Asian Americans occasionally ask me the same can go together. The late Isaiah Berlin, a great philosopher question, but possibly with different meaning. Some of them of pluralism, once wrote, “Only barbarians are not curious are the same as anyone else: they may want to confirm a about where they come from.” But he included that subject conjecture of some sort, or they wish to confide that they of self-inquiry in a lengthy list of topics in “the pursuit of detest another group, say, Koreans or Vietnamese. A few the ideal.” He thought that the civilized person ought to would like to establish rapport with someone else who hap- care about, as importantly, “how they came to be where pens to be a minority and an outsider. They might need help they are, where they appear to be going, whether they wish because of their poor English or finding their way in an unfa- to go there, and if so, why, and if not, why not.” miliar country, and they guess that I will be sympathetic Whether “where are you really from?” begins or ends the toward them if not similar to them. conversation is crucial, then. The answer depends on why What makes these incidents disquieting is that the pas- the question is asked. senger at the airport, the waiter at the restaurant, the doctor, Unfortunately, there is worse. Whenever I have had the any Asian individual who turns around, leans over, or pulls privilege of appearing in a public forum discussing a con- me aside to ask, “Where are your people from?” “Where are troversial topic—and any issue worth discussing in a public your parents from?” or “What province is your family from?” forum is likely to be a controversial topic—I receive letters, does so as if they are asking me what has not been asked phone calls, and e-mails from people who disagree vehe- them before. They do not care that they are reinforcing prej- mently with my perspective. I enjoy the 15 minutes of udices that affect them. fame, but I am taken aback by a few of the messages. They run along the lines of, “Yeah, and what do they do in China?” from an overseas I have been told, for example, It is a swift slide that because it would not be easy group to an American individual by way for a white person to become a Chi- nese citizen, it is obvious that all of the catch-all phrase “you people,” as countries value their sovereignty. Thus, according to this reasoning, in, “if you people hadn’t bombed Pearl the United States is no different in making it hard for a Chinese person Harbor….” to become an American citizen. When I have spoken up in favor In the diverse democracy that makes up today’s United of affirmative action for historically underrepresented States, we have decided that we will not be bound by our col- minority groups that continue to face racial disparities, I lective past. Yet we remain acutely aware of race—which is received hate mail that asked questions such as whether not to say that we are racists. We want to know about race, they have affirmative action in Japan. but for many different reasons. I am tempted to retort, “How would I know?” Or with The question “where are you really from?” shows that we too much cleverness for my own good, I could come back interact with others around us with a sense of race even if with, “What does that have to do with the price of tea in we are not mindful of it. Being asked “where are you really China?” from?” likely will not result in my being denied an apart- The put down of opinions held by Asian Americans ment or a job, except in isolated instances. I wonder what through an allusion to their presumed homeland is an ad people are thinking, though: when I was interviewing for a hominem attack in its classic form. It has nothing to do position as a law professor only seven years ago, I was told with the substance of an argument and everything to do by a senior faculty member at one school (in California no with the identity of the person advancing it. The writer who less), “How appropriate that we have the Asian candidate asked me about Japan had it wrong, doubly. I am Chinese today”—he was referring to December 7, Pearl Harbor Day. American, not Japanese American. But even though my I believe the question is a signal, along a spectrum of invid- parents came from China, I have never even set foot on the ious color-consciousness that starts with speculation but Asian continent. leads to worse. To be met with it so quickly and so often I have heard the point as a direct taunt. It comes as the reminds me, over and over, that I am being treated differ- heckler’s jeer: “If you don’t like it here, then go back where ently than I would be if I were white. you came from.” Or it comes as the snubbed host’s uncom- Yet some people who want to talk to me about where I prehending whine: “Don’t you like everything this country am from want to share with me where they are from liter- has given you?”

16 Civil Rights Journal / Winter 2002 © Seattle Post-Intelligencer Collection; Museum of History & Industry/CORBIS © Seattle Post-Intelligencer Collection; Museum of History

Chinese American girl scouts in Seattle, Washington, 1947.

The perpetual foreigner syndrome also can be expressed as to be catered to. When I am outside the United States, it is empathy. Now and again, people introduce themselves to me readily apparent to the rest of the civilized world where I by speaking pidgin Chinese. Or they make an elaborate show come from as soon as I open my mouth. of bowing that is so inept that it might as well be a parody. Here at home, many Asian Americans are familiar with They don’t realize that I speak English perfectly well and am those awful moments when, in a dispute over who was in accustomed to shaking hands. line first at the cash register, where dogs can be walked, who I have listened to people explain to me, trying their bumped into whom, or in declining to give money to a patience as much as mine, that they appreciate how I as an panhandler, and so forth, a person who is white or black Asian American may face discrimination here, because suddenly shouts something about “go back to where you when they as Americans were traveling as tourists in China came from” or mutters an aside meant to be overheard or Japan they, too, felt prejudice. As much as I value efforts about “all these damn foreigners.” In these instances, Asian at mutual understanding, even these kindly people are Americans must decide whether they can and should disre- offering up an analogy that is frustratingly inappropriate. It gard the racial tone. I find that when I respond, even if I try shows both what is wrong with the way Asian Americans to reason with someone, they sometimes become implaca- are characterized and the nuance of the error. ble and the effort to engage them is futile. They insist more As a law professor, I help train people to argue from anal- hotly that they are right, not racist. They were merely claim- ogy and to distinguish among different cases. Some analo- ing the parking space they saw first, and even if they said, gies are persuasive; other analogies are inapt. The proper “You know, this is the way we do it in America” or asked, comparison to the treatment of a white American over- “How long have you been in this country, anyway?” it was- seas—where he is in fact a “foreigner”—is the treatment of n’t a veiled racial reference and I shouldn’t take it as such. a nonwhite American overseas—where in fact he is a “for- Most people don’t see the slippery slope leading from eigner.” If the idea is to match up the situations, then the governments and companies to nations and peoples and appropriate counterpart to the treatment of a white Ameri- then to races and cultures; it is a swift slide from an overseas can in Asia is the treatment of an Asian American in Europe. group to an American individual by way of the catch-all Otherwise, the necessary implication is that America is a phrase “you people,” as in, “if you people hadn’t bombed white nation. Incidentally, a nonwhite United States citizen Pearl Harbor . . .” The distinction of United States citizen- visiting “the Continent” is likely to be regarded as a bona ship, seemingly all-important, is blurred away. It is as easy fide Yankee. I am as able as my neighbor to be an ugly now as it was a century ago to find diatribes about the Chi- American: a loud, rude, English-speaking tourist expecting nese government or Japanese companies that speak in

Winter 2002 / Civil Rights Journal 17 terms of China or Japan as monoliths or that conclude “the Asian Americans. The racial conception of citizenship they Chinese are a military threat” or “the Japanese are an eco- reinforced has a long lineage. nomic threat.” The further proclamations that “the Chinese In 1882, Congress passed the Chinese Exclusion Act. are belligerent” or “the Japanese are devious” don’t have a Over time, the legislation was extended to create an Asiatic- clear stopping point. barred zone. Asian immigrants were not allowed, with only During the peak of Japanese economic gains, when in a few exceptions—many came illegally, masquerading as 1989, the Mitsubishi conglomerate bought Rockefeller Cen- the “paper sons” of individuals who were already legally ter, politicians and pundits took it as a dire sign that the present; they were “sons” only on paper and not in reality. soul of America was for sale. In 1992, opponents almost Asian residents were prevented from becoming naturalized blocked the sale of the Seattle Mariners baseball team to the citizens, because they could not meet the prerequisite of founder of Japanese game-maker Nintendo, who wanted to being a “free white person.” University of California at save the franchise for the city and forestall its move to a Davis law professor Bill Ong Hing has said of these immi- larger market. In contrast to the fallout from Japan-bashing, gration policies: “It’s no accident that the Statue of Liberty there were no such concerns about the British and Dutch faces Europe and has her back to Asia and Latin America.” companies that owned more U.S. properties than the Japan- Such sentiments were not limited to Asians; but they ese even during the latter’s buying frenzy, nor in 1998 when were undeniably racial, ethnic, and religious in all their the German Daimler conglomerate, makers of Mercedes- manifestations. The nativist movement sought to restrict the number of Europeans who were Southern and Eastern, © CORBIS and Catholic and Jewish. They brazenly wished to preserve the white Anglo-Saxon Protestant dominance of the coun- try, setting their quotas for visas based on the percentages of each ethnic group’s representation in the country at the turn of the century and assuming that anyone who was not part of their “old stock” was inferior. The federal government opposed citizenship even for native-born individuals of Asian ancestry. In a test case in 1895, the solicitor general—the government’s lawyer before the Supreme Court—opposed the application of Wong Kim Ark for citizenship. Wong had been born in San Francisco to parents who were Chinese. His hopes sprang from the 14th Amendment to the Constitution, which overturned the Dred Scott decision depriving African Americans of citizen- ship, and which continues to guarantee everyone “equal A young girl with the family baggage, awaiting deportation to an protection” under the law. The 14th Amendment opens, internment camp, 1942. “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .” Benz, merged with Chrysler, effectively taking it over. In his brief to the Supreme Court, the solicitor general (Showing the pointlessness of asking about the nationality presented the official view of the government by reviewing of international conglomerates, Daimler and Chrysler both the precedent that appeared to support Wong before invok- owned part of Mitsubishi.) ing the sacredness of citizenship. He states, “For the most The original points that critics make about the handful persuasive reasons we have refused citizenship to Chinese of totalitarian leaders of the Chinese Communist Party or a subjects . . . and yet, as to their offspring, who are just as few top business executives in a Japanese industry may be obnoxious, and to whom the same reasons for exclusion well founded and even persuasive, but they are generalized apply for equal force, we are told that we must accept them beyond all reason. Whether by intention or through care- as fellow-citizens, and that, too, because of the mere acci- lessness, an anti-Asian outlook appears to encompass Asian dent of birth.” He asks rhetorically whether “Chinese chil- immigrants and even Asian Americans. Those who exclaim, dren born in this country” should “share with the descen- “But we don’t mean Chinese Americans or Japanese Amer- dants of the patriots of the American Revolution the exalted icans,” should realize that others do, and it is as difficult for qualification of being eligible to the Presidency of the people to distinguish between the two positions as it is easy nation.” His answer is adamant: “If so, then verily there has to clarify what is meant. Such precision would weaken the been a most degenerate departure from the patriotic ideals rhetoric: it is more emphatic to exclaim “the Chinese” and of our forefathers; and surely in that case American citizen- “the Japanese” than to talk about the Chinese government ship is not worth having.” or Japanese companies, but it also is dangerous and wrong. Nonetheless, the Supreme Court ruled in favor of Wong The confusion of Asians and Asian Americans springs by a 6-to-3 vote. It wrote that the citizenship conferred by from rules that would prohibit Asians from ever becoming the measure was “general, not to say universal, restricted

18 Civil Rights Journal / Winter 2002 only by place and jurisdiction, and not by color or race.”1 standing of the common man.” By that standard, “the Even the Supreme Court was not as willing to allow physical group characteristics of the Hindus renders them Asian immigrants to naturalize. It gave itself the power to readily distinguishable from the various groups of persons assign racial identities and the consequences that followed. commonly recognized as white.” From the inception of federal regulation over immigration, The law was more than matched by popular literature Congress had maintained the rule that only “free white per- and even progressive political movements. sons” could naturalize. In 1870, it amended the statute to Novelist Jack London, whose dispatches from Asia for allow “persons of African nativity, or African descent” to the Hearst newspapers that introduced the term “yellow naturalize as well. Thus, Asian immigrants had to plead peril,” also wrote an essay of that title in 1904 warning of either that they were “free white persons” or “persons of the “menace” to the Western world from “millions of yel- African nativity, or African descent.” In dozens of cases, low men” (Chinese) under the management of “the little they lost repeatedly. brown man” (Japanese). His rejoinder to fellow socialists Takao Ozawa, a Japanese immigrant, and Bhagat Singh who admonished him for these attitudes toward Asians was Thind, an Indian immigrant, both had their cases heard by “What the Devil! I am first of all a white man and only the Supreme Court; both of them lost, within three months then a Socialist.” His belief in Anglo-Saxon supremacy was of each other in 1922–23.2 As University of California at fervent and formed “a dominant note throughout all his Berkeley law professor Ian F. Haney Lopez detailed in an writing,” according to his daughter, as was his conviction excellent academic study, Ozawa wrote an autobiographical that “the world has ever belonged to the pure breed, and brief before retaining a former U.S. attorney general to argue has never belonged to the mongrel,” in his own words. his case. Ozawa attests to his assimilation: “In name, Gen- Labor organizer Samuel Gompers, president of the AFL- eral Benedict Arnold was an American, but at heart he was CIO, co-wrote a pamphlet in 1901 about “Meat versus Rice: a traitor. In name, I am not an American, but at heart I am an American.” Called a paragon of assimilation by later scholars, People who know nothing Ozawa reviews his own life: his flouting of Japanese laws requir- about me have an expectation of ing that he report himself, his ethnicity, as if I will give up my life marriage, and his children’s birth to the government; his story as an example of exotica. lack of affiliation with Japanese organizations; his children’s attending an American church and an American school; his American Manhood Against Asiatic Coolieism—Which use of English, and his children’s lack of knowledge of Shall Survive,” arguing “while there is hardly a single reason Japanese; his education at American schools; his continu- for the admission of Asiatics, there are hundreds of good ous residence for 28 years; his preference for an American- and strong reasons for their absolute exclusion.” On other educated wife; and his readiness to “return the kindness occasions, he warned of “the menace of a possible over- which our Uncle Sam has extended me.” Moreover, Ozawa whelming of our people by hordes of Asiatics.” He argued he was literally white, even more so than “the aver- explained that “the Caucasians . . . are not going to let their age Italian, Spaniard or Portuguese.” standard of living be destroyed by negroes, Chinamen, Japs, The Supreme Court rejected his claims without much or any others.” Despite the AFL having pledged to unite difficulty. It reasoned that “white” and “Caucasian” were working people “irrespective of creed, color, sex, nationality, synonymous. Japanese were not white, because they were or politics,” Gompers forbade locals from accepting Chi- not Caucasian. Their skin color was inconsequential, nese or Japanese members. because skin color was not the only test of racial identity. Gompers was not like other anti-Asian agitators, however, Thind tried a different tactic, to no avail. Exactly as the who were anti-Asian through and through without any reser- precedent set by Ozawa suggested would be appropriate, he vations. He wanted to be known as open-minded. He insisted referred to the many taxonomies of race that had been that he had no grudge against Asian immigrants, but was act- devised by social scientists. Within the leading schemes, ing as he did because of his experiences and observations. He Asian Indians were not only Caucasian but also Aryan. said in his autobiography, “It is my desire to state emphati- The Supreme Court should have been caught by its own cally that I have no prejudice against the Chinese people” but equation of “white” and “Caucasian,” but it disposed of only “profound respect for the Chinese nation.” He said in Thind’s petition with the same alacrity it had shown the very next paragraph, “I have always opposed Chinese Ozawa. It backed away from the scientific test, reasoning immigration not only because of the effect of Chinese stand- “the words ‘free white person’ are words of common ards of life and work but because of the racial problem created speech, to be interpreted in accordance with the under- when Chinese and white workers were brought into the close

Winter 2002 / Civil Rights Journal 19 contact of living and working side by side.” These contradic- cated nativism and eugenics. Before World War II, he tory comments were not exceptional. He had said earlier that reported from Germany as an enthusiast of Hitler’s regime. once the Chinaman comes, he has either dominated or been He posits an “iron law of inequality.” driven out, for “the Chinaman is a cheap man.” He then Stoddard states that the “obviously dangerous Oriental” added, as if he had regrets for his hatred, “The American peo- was someone “against whose standards of living the white ple do not object to the Chinese because they are Chinese,” man cannot compete.” He views “the brown and yellow but because of all the ills they would bring to the country. worlds of Asia” as “the effective centres of colored unrest.” It never occurred to Gompers that Asian immigrants He worries that Asians would endanger whites because they were not inherently any different from other laborers, but had their own “admirable cultures rooted in remote antiq- were sometimes forced into being scabs. He did not think uity and worthy of all respect,” but they also “are to-day that he could organize them to strengthen all workers, and once more displaying their innate capacity by not merely he did not recognize that he was contributing to the very adopting, but adapting, white ideas and methods.” He dis- racial problem he blamed for the inability to join forces. For claims any “disparagement of the Asiatic.” He argues that him, race was crucial and exclusion was preferable to coop- both Asians and whites were justified in winning opportu- eration. Yet he recognized, however dimly, that it would be nities in new lands, but “the hard facts are that there is not wrong to act out of prejudice even if he refused to acknowl- enough for both” and the Asian “automatically crushes the edge his own feelings as prejudice. white man out.” Demagogues Madison Grant and Lothrop Stoddard had Grant and Stoddard were influential, before their ideas of expressed the same apprehensions in their best-sellers in white superiority were repudiated in the aftershock of the 1916 and 1920, respectively. Grant wrote The Passing of a horrors of Nazi death camps. Stoddard is even fictionalized Great Race; Stoddard, The Rising Tide of Color. In both, the in F. Scott Fitzgerald’s classic chronicle of the Jazz Age, The two now-forgotten social Darwinists posited an imminent Great Gatsby. The character Tom Buchanan, who has been racial conflict arraying black, brown, and yellow against the reading Stoddard (called Goddard), proclaims, “The idea is

During military crises, the perpetual foreigner syndrome becomes especially dominant. superior white. More extreme than Oswald Spengler, the if we don’t look out the white race will be—will be utterly historian who devised the idea of the decline of the West, submerged . . . Well, these books are all scientific.” Grant and Stoddard were especially worried about “race sui- During military crisis, the perpetual foreigner syndrome cide” by the internal weakening of the stock of the Nordic becomes especially dominant. After Imperial Japan or the Anglo-Saxon. launched its sneak attack on Pearl Harbor on December 7, Chair of the New York Zoological Society, Grant argues 1941—“a day that will live in infamy” in President Franklin on a biological basis for global segregation of barbaric from Delano Roosevelt’s historic Declaration of War speech— civilized races. With his interest in museums and environ- approximately 120,000 Japanese Americans were suspected mentalism—he formed a society to save the redwood of the worst treason. They were presumed guilty as a group forests—Grant represented the blend of privilege and preju- of collaboration, sabotage, espionage, and being a likely dice, with culture and science, that shaped public policy. “fifth column” in the event of an invasion. While two- Although he had a moneyed pedigree that dated back to thirds of the population consisted of native-born United the Colonial age, Grant was a self-proclaimed Democrat. He States citizens, they were thought to have blood ties to a averred that wealthy classes had introduced both black hostile power in what was viewed as a racial war. slaves and Asian immigrants, to the detriment of common Given a few days’ notice, they were rounded up and sent people. But he did not indict the wealthy for seeking their to 10 hastily erected internment camps in deserts and own advantage, and instead expressed hostility toward the swamps. With few exceptions, they were never charged people who were exploited. “If there had been an aristo- with any crimes or convicted of any wrongdoing. They lost cratic form of governmental control in California,” he said, their liberty, their livelihoods, their communities, and their “Chinese coolies and Japanese laborers would now form the possessions. controlling element, so far as numbers are concerned, on The panic after Pearl Harbor was understandable. The dis- the Pacific coast.” In other words, it was the Asian workers aster was unprecedented. Yet the decision to blame Japanese who were the enemy. Americans should be neither condoned nor followed. A magazine editor and radio broadcaster who authored Lieutenant General John DeWitt, commander of the West- more than a dozen books, including a history of children, ern Defense, famously declared, “A Jap’s a Jap . . . The Japan- Stoddard was a disciple of Grant’s. Several of his works advo- ese race is an enemy race . . . It makes no difference whether

20 Civil Rights Journal / Winter 2002 © Joseph Sohm; ChromoSohm Inc./CORBIS

Young people at a Chinatown polling station, Los Angeles, California, 1992. he is an American citizen, he is still a Japanese.” He added (Although Korematsu had his conviction vacated on a rare that German Americans and Italian Americans were only writ of coram nobis decades later and received a Presidential dangerous in some instances, “but we must worry about the Medal of Freedom in 1998, his case has never been over- Japanese all the time until he is wiped off the map.” ruled and remains “good law.”)4 Justice Hugo Black, renowned as a civil libertarian, wrote Their patriotism may have been an unrequited love, but the majority opinion in the best known of the four Supreme Japanese Americans displayed it poignantly. The Japanese Court cases lending judicial approval to the wholesale incar- Americans, still technically classified as “enemy aliens,” ceration of a minority group.3 Justice Black reasoned that who enlisted in the then-segregated Army proved them- Fred Korematsu, who had had crude plastic surgery in an selves with the ultimate sacrifice. The 442nd Regimental attempt to pass as Hispanic and stay with his white girl- Combat Team and 100th Battalion became the most highly friend instead of reporting to an internment camp, “was decorated units of their size and length of service in Ameri- not excluded from the Military Area because of hostility to can history. him or his race.” Instead, Black expounds, “He was The law has changed, but the general culture has not. excluded because we are at war with the Japanese Empire.” When 21-year-old Yale student Maya Lin won the competi- Justice Black notwithstanding, the crux of the matter tion for the Vietnam War Memorial commission, her pro- must have been race. For aside from being of Japanese found design, with its black granite displaying a stark list of ancestry, Korematsu was simply another citizen. Apart from all the 58,000 Americans who died in the conflict and set his ancestry, he had nothing to do with either the Japanese into a gash in the earth, was controversial for more than its Empire or other Japanese Americans. The Korematsu case is aesthetics. The selection process was anonymous, and the the only example of the High Court using “strict Ohio-born Lin was identified by only a number until her scrutiny”—a form of judicial review that is said to be espe- sketches were selected. Once her face was attached to her cially skeptical of racial references—but approving an invid- art, there were murmurings that she was the wrong choice ious racial classification of a racial minority. Moreover, a because she was a “gook.” Although her monument has case that was supposedly not about race at all has become become one of the top tourist attractions in the nation’s the source of the controlling legal doctrine on race. capital, bringing together veterans, protesters, and families

Winter 2002 / Civil Rights Journal 21 who make crayon rubbings of their love ones’ names, the Americans as the “model minority” (another myth requir- reticent sculptor still expresses shock at the attempts to dis- ing critical thought) to send the none-too-subtle message to credit her because of race. African Americans that “they made it, why can’t you?” Yet Hate crimes against Asian Americans are a brutal form of efforts to broaden the discussion of race need not come at the perpetual foreigner syndrome. The 1982 murder of Vin- the expense of African Americans. The struggles of various cent Chin is only the most notorious example. The Chinese groups can complement one another instead. They can gain American engineer was clubbed to death in Detroit by two strength by uniting through principle. white autoworkers who, accusing him of being responsible To do so, it is necessary to include individuals and com- for their woes, took a baseball bat to his head. The case only munities that are neither black nor white in the decision- became more widely known when the judge sentenced the making that constitutes democracy and to consider the perpetrators to probation and a $3,780 fine. Numerous concerns of these persons and groups. Among other con- other cases have been recorded around the nation, with crete measures, it is important to maintain accurate and attackers such as the “dot-busters” in New Jersey who current statistics—on matters ranging from housing segre- assaulted Indian immigrants and killed two in their violent gation, educational attainment, health care, income levels, spree, and others who have taken guns, knives, and fists to and political representation—to determine both the Asian Americans as they recall Vietnam or kung fu movies. progress that has been made and the problems that remain. Yet I am an optimist. I know I am a citizen whatever oth- Any program that is meant for all citizens must be accessi- ers might think. And I believe that by working together ble in operation to all citizens. Any program that is targeted cooperatively and constructively, we can forge a sense of at disadvantaged segments of the population should under- community that also allows dissent, a unity that contains take an objective consideration of who should be a benefi- diversity. By engaging in the continual process this chal- ciary, rather than relying on assumptions. lenge requires of us, we will make the promise of our nation The perpetual foreigner syndrome also shows us that the reality of our lives. At a minimum, an open society some lines that are supposedly based on citizenship actually requires that each of us accept all of us as equals. cover up lines that are based on race. Because the former is The perpetual foreigner syndrome can be addressed permissible and the latter is not, it becomes easy to ration- through public policy. Most importantly, the perpetual alize distinctions among people as involving citizenship foreigner syndrome requires that we acknowledge our rather than race. own feelings and actions. As the questions about “where To overcome this tendency, government officials could are you really from?” demonstrate, many of us sometimes give greater scrutiny to classifications that seem to be based think about race without even realizing that it is on our on citizenship to determine if they are racially motivated or minds. We are unconscious of our own stereotyping, produce racial effects. Of course, the equal protection clause despite our insistence that we are striving for an ideal of of the Constitution—the source of the strongest protections color-blindness. Yet it happens to Asian Americans often: of our rights—provides guarantees to all persons and not only our civil rights violated twice over when even incidents citizens. The Supreme Court has interpreted this language in such as assaults that involve racial epithets—“chink” or some instances in favor of persons generally and in other “jap” or “gook”—are regarded as something other than instances as restricted to citizens alone. It may require funda- hate crimes. mental changes to our society, though, to achieve the same The perpetual foreigner syndrome suggests that to under- consensus about citizenship that has developed over race. stand the complexities of race, we must use a paradigm that Meanwhile, our civic culture depends on genuine dialogue is not exclusively black and white—in literal and figurative among equals. Leadership and grassroots efforts that further terms. In literal terms, if “American” means “white” and the process of forming coalitions ought to be encouraged, “minority” means “black,” then individuals who are neither supported, and funded. Working constructively and cooper- white nor black end up being neither American nor minor- atively, we can progress toward social justice. C R ity. They are excluded altogether as foreigners who lack rights, even if they are in fact native-born Asian Americans, FRANK H. WU IS AN ASSOCIATE PROFESSOR OF LAW AT HOWARD Latinos, or of mixed-race backgrounds. In figurative terms, UNIVERSITY. THIS ESSAY IS AN EXCERPT FROM HIS BOOK, YELLOW: if racial issues involve only villains and victims, then it is RACE IN AMERICA BEYOND BLACK AND WHITE, PUBLISHED IN impossible to resolve problems without identifying wrong- DECEMBER 2001 BY BASIC. doers who are bigoted. The historical, structural, and subtle forms of racial disparities become easy to ignore, even if they are as severe as the isolated and spectacular incidents References of hardcore racism. 1 United States v. Wong Kim Ark, 169 U.S. 649 (1898). It is possible and crucial to include Asian Americans, 2 Takao Ozawa v. United States, 260 U.S. 178 (1922); United Latinos, and individuals of mixed-race backgrounds, with- States v. Bhagat Singh Thind, 261 U.S. 204 (1923). out in any manner denigrating the unique experiences of 3 Korematsu v. United States, 323 U.S. 214 (1944). African Americans. Demagogues may introduce Asian 4 Korematsu v. United States, 584 F. Supp. 1406 (1984).

22 Civil Rights Journal / Winter 2002 HISTORYas SENTIMENTAL EDUCATION A Preface to Holy Ground and The Destruction of the Kingdom of Kongo

he mantra about repeating the history one hasn’t learned is true not only for delinquent high school students and pundits quoting Santayana. But it has become by so much the dominant rationale for the historical impulse that we risk neglecting other reasons history repays study. Indeed, the two vast injunctions of the discipline— towardT memory and against repetition—are more at odds than we typically recognize. All history is, ultimately, local, specific to a time and place and culture—and in that sense unique. The more one remembers the details of a story, the less clear its moral is. History is not a bin of aphorisms; historians are not Aesop-manqués. Among the other reasons to study history, a better understanding of the present is the most seemingly straightforward. We are at a certain place along the path; knowing how we got here can shake loose the impression that our current arrangements are destined, natural, and fixed. That the present came into being as a result of the choices and desires of the men and women who preceded us implies the contingency of the present and suggests the malleability of the future. Nothing is bound to be the way it is; that this or that happened is not the same as saying that it could not have happened otherwise. The following two articles—one an original piece of writing, the other, a reprint from a neglected classic—are guerrilla raids on a couple of the more remote provinces of history. They describe, in turn, a forced march of Cherokee from Florida to Oklahoma conducted early in the 19th century and a sequence of letters between a Portuguese and an African king dating from the 15th. The incidents in themselves are minor, small craft in an ocean of event. Yet they illuminate the larger tides that capsized continents, and in their wealth of detail, remind us that history is lived by individuals, however much or little they are the authors of their fates. The rise of slavery, the need to justify its self-evident cruelties, the rapidity with which these legitimations became accepted, the effect of this trade upon African societies; these are the larger issues around which Lopes’ depiction of the correspondence between a medieval Portuguese and Kongolese king revolve. Similarly, Jahoda’s account is about nothing less than the expropriation and extermination of a people—or rather, of many peoples—but it takes place around long- extinguished campfires in the north of Florida in the spring of 1813. It is in the lived details these stories provide that we embark not merely on a scholarly but on what was once unapologetically called a sentimental education—an education in the sort of complex and humane understanding that ought to inform our conduct today. C R

Winter 2002 / Civil Rights Journal 23 “Away back in that time in—1492—there was a man by the name of Columbus came from across the great ocean, and he discovered the country for the white man. . . . What did he find HOLY when he first arrived here? Did he find a white man standing on the continent then? . . . I stood here first, and Columbus first discovered me.” GROUNDby Gloria Jahoda —CHITTO HARJO, CREEK

n the north the scarlet council fires burned long and high on frost-touched nights in the spring of 1813. It was the Moon of the Running Sap, and the United States and Britain were at war. ITecumtha of the Shawnees of Ohio was urging Amer- ica’s Indians to declare for the British and push out of Indian land forever the rude settlers who appeared to think they were the only Americans who mattered. The Prophet Tenskwatawa, Tecumtha’s brother, was traveling from tribe to tribe exhorting their clans to rebellion as the acrid flames crackled in the dark: “O Shawnee braves! O Potawatomi men! O Miami panthers! O Ottawa foxes! O Miami lynxes! O Kickapoo beavers! O Winnebago wolves! Lift up your hatchets; raise your knives; sight your rifles! Have no fears—your lives are charmed! Stand up to the foe; he is a weakling and a coward! O red brothers, fall upon him! Wound, rend, tear, and flay, scalp, and leave him to the wolves and buzzards! O Shawnee braves! O Potawatomi men!” Had not the Great Spirit first made the Shawnees before he made the French and English out of his breast, the Dutch out of his feet, and the American Long Knives out of his hands? “All these inferior races of man he made white and placed them beyond the Stinking Lake,” Tenskwatawa shouted as black smoke vanished upward into a blacker sky where stars glittered crisp and blue-white. Now it was time to drive the inferior races back across the Stinking Lake. The British must be used to help exterminate the Americans; after- ward, the united Indians could deal similarly with the British.

24 Civil Rights Journal / Winter 2002 Many of America’s original settlers listened spellbound to knives, osnaburg cloth, flannel and calico and sturdy blan- the compelling oratory of Tecumtha and Tenskwatawa as it kets, brightly colored glass beads, and also potent whiskey. echoed through their ebony forests. Soon exhortations to No tribe relied on traders more than the Creeks; they vengeance were dividing tribes into hostile factions of mod- took to the white man’s ways so readily that they were con- erates and fanatics, none more bitterly than the southern sidered a “civilized” tribe. Parties of Creeks regularly jour- Creeks. The Creeks, so called by the whites because most of neyed from Georgia and Alabama to exchange skins and the subtribes that comprised the nation lived on rivers and furs at Pensacola; many Creek women had married traders. streams, owned sprawling fertile lands in Georgia and Names like McGillivray, Farquharson, Weatherford, and Alabama. Rivers that flowed red with Georgia clay, the Flint McIntosh were common in the war towns and peace towns and Chattahoochee and Ocmulgee, and Alabama streams that lined ferny southern riverbanks. The Creeks had appro- whose slower brown waters moved under high canopies of priated white customs that suited them—cloth dress, hunt- longleaf pines and moss-draped live oaks, the Coosa, Tal- ing weapons and ammunition, the keeping of peach lapoosa, Tombigbee, and Alabama, belonged by tradition to orchards and livestock. But in most of their minds there the Creeks. Farther south lived a scattering of Spaniards in was no doubt that their lands were theirs forever. “They are west Florida, whose capital, Pensacola, was a boisterous town our life and breath,” said one of their chiefs, Yahola Micco. full of an assortment of outlaws, pirates between expeditions, “If we part with them we part with our blood.” petty Spanish officialdom, and dark-eyed senoritas who wel- The Creeks, though not as drastically as Tecumtha’s comed the visiting British army and navy with enthusiasm. Shawnees, had already felt the pressure of white expansion The British Indian trading firm of Panton Leslie and Com- into their country. They watched horrified as American pany was based in Pensacola too. In the 321 years since frontiersmen killed game not only for food but for fun. The Columbus had begun exterminating the Tainos of the West Creeks had taken a long step into the 19th century, at the Indies, America’s Indians had become dependent on the same time that they had also been pushed back from the goods traders sold them: muzzle-loading rifles, keen-honed Atlantic Coast they had once known. Some were fatalists: what would be, would be. But some were not. When Tecumtha’s Religion of the Dancing Lakes came to young Creek braves, they were ready to believe in it. As they gyrated, leaders of the dance carried red sticks that Tecumtha’s followers said would show the direction from which the whites were coming. Any Indian who bore a red stick could not be injured. Soon council fires were also burn- ing in the heavy, humid nights of the South. In the Creek war town of Tuckabatchee, 5,000 people crowded the main square to watch Red Stick dancers whirl naked except for breechclouts and eagle feathers. As the hard, hammering music of rattles and the wails of reed flutes rose and fell in the perfumed darkness, the Red Stick men undulated into the chofoka, the town meetinghouse, while sweat poured down their burnished faces. In ringing tones, they prophesied mir- acles. Soon afterward, in rapid succession, came a comet, a meteor shower, and a mild earthquake. Could anyone doubt Tecumtha when he said that the earth would tremble when he stamped his foot upon it? The hotheaded warriors of the Creeks did not. But Lumhe Chati, Red Eagle, had misgivings. The whites he knew in southern Alabama had been friendly. Why could the two peoples not live together? Red Eagle was born Bill Weatherford, son of a white trader and a Creek mother whose maiden name had been Tait. The lands he knew best were the pinewoods and swamps where the Tombigbee and the Alabama rivers joined, a few miles north of the site of the ancient Indian town of Mabila. The Mabila Indians, obliterated by conflict and disease, had already passed into history, along with the Natchez and Timu- cuas and Calusas and Apalachees. Now Mabila (the French, when they had owned it, had called it Mobile) belonged to the Creeks. The path between Mobile and Pensacola was well worn with Creek footprints as it wound among light-speckled Photo: Woolaroc Museum. Used with permission.

Winter 2002 / Civil Rights Journal 25 forests and sluggish coastal rivers, past recruiting notices in Tennessee: “VOLUN- broad bays full of marsh grasses shin- TEERS TO ARMS! . . . Are we the titled ing darkly in the southern sun- slaves of George the Third? The light. The place of pilgrimage in military conscripts of Napoleon? Pensacola was the store of Or the frozen peasants of the Panton Leslie and Com- Russian Czar? No—we are pany. Also in Pensacola, as the freeborn sons of the American frontiersmen only republick now exist- knew, British soldiers, with ing in the world.” Andrew the compliance of the Jackson, who had known Spanish, were training the Indian wars of the Appa- bands of Creek Indians in lachians as a boy, knew there organized warfare. These par- were no republics among Indi- ticular Creeks had left their old ans. Most red men understood lands in Georgia and Alabama to his contempt for their race. The become Siminoli, wanderers. The man whose name was an inspiration Jackson had turned Indian against Indian in his determination to subjugate every red man in the United States. main body of the tribe had severed its ties with them. A Creek to Colonel Caller was Jacksa Chula Harjo to the Creeks— in Tuckabatchee was as much like a Seminole of steaming “Jackson, old and fierce.” Some said he was mad. Neighboring Florida as an urban Yankee merchant who carried a gold- Choctaws called him, more succinctly, “The Devil.” headed cane was like a squatter in the hinterlands who lived On the morning of July 26, Caller started the laborious on deer, opossum, and raccoon meat. The Creeks considered crossing to the east side of the Alabama. Horses swam by the their Siminoli brothers “wild men.” Red Eagle, like so many of side of long dugout canoes; it took most of the morning to his nation, admired the efficiency of white civilization. He get the animals across. At noon, Caller’s party halted at the found the Religion of the Dancing Lakes excessive, the flight cow pens of a frontiersman, where they were reinforced by a of the Siminoli futile, and the belief in the invincibility of company under the command of Dixon Bailey, a mixed- those who carried red sticks grotesque. blood Creek who had been educated in Philadelphia at white During the Summer Moon, in July 1813, 90 Alabama expense. Bailey’s men carried the same mixture of rifles and Creek warriors set out for Pensacola with laden packhorses. shotguns as Caller’s; they were as ready to fight, and their Their leader was the half-breed Peter McQueen, chief of the frontier horses were as sturdy. They wanted their pay, how- Tallassee band. They made their way slowly through the ever, more than they wanted glory. dank heat. Frequently, they paused to rest in the shade of By July 27, Peter McQueen’s Creeks were returning from high pines along sepia streamlets where there was fresh Pensacola with their purchases: rifles and shotguns like those water to drink. To the whites of the Alabama frontier settle- the Long Knives carried, the bright cloth Creek wives fancied, ments, the group of traveling Indians was frightening. The metal fishing books, sharp hunting knives, and the British- British fleet had been seen off Pensacola, and it was com- made cookware that had replaced Creek pottery. The morning mon knowledge that the British and Spanish were inciting was torrid. Before noon, McQueen’s party stopped by a tiny Indians and selling them ammunition. From cabin to far- rivulet named Burnt Corn Creek, where they cooked and ate flung cabin word was passed that the Creeks, urged on by the game they had caught. The smoke of their fire rose slowly Red Stick braves, were planning a massacre. Alabama into the pinetops of the little barren where they were resting. Colonel James Caller called out a ragtag territorial militia Without warning, the Americans fell on them with shrill and crossed the Tombigbee to Sisemore’s Ferry on the yells, forcing them to plunge into the river. Soon the Ameri- Alabama. There, on the river’s western bank, he bivouacked cans were losing Creek packhorses and plundering the wares for the night. His recruits listened to the calling of owls and of Panton Leslie and Company. Only a few bothered to pur- the thumping of marsh rabbits, wondering if the noises sue the Indians swimming down the Alabama. Then Colonel came from animal or human throats. Caller ordered a retreat to a nearby hill in order to consolidate The militia had passed through the town of Jackson, named his position. But the greediest of his followers held onto their for the American major-general who had written such stirring booty as they drove their horses before them, while the

26 Civil Rights Journal / Winter 2002 remaining Indians disappeared into a nearby swamp. The their suffering was undiluted by wind. Inland Alabama has militiamen clung to their new possessions thinking them- no summer winds. In the swamps the water shimmered selves victorious, while Caller and Bailey tried to rally them. darkly and the slow snouts of alligators made semicircular But the Indians rushed out from the swamp brandishing the ripples as they moved forward; water moccasins were curled guns they had never relinquished. From the swamp they ran over looping branches. The smell of sulfurous marsh gas to a bed of tall reeds, where they began shooting at the whites drifted over the stockade to mix with the smell of disease and in the open woodland. This was more than Caller’s militia spoiling food. And thus Fort Mims waited. could endure. Two-thirds of them fled into the surrounding Meanwhile Peter McQueen, the literate leader of the fate- forest. Caller himself, who had marked no trail, became lost ful expedition to Pensacola, received an interesting commu- in a labyrinth of pond and hammock land and saw-palmetto nication from British and Spanish agents in Pensacola who thickets. When he was found 15 days later he was “starved had heard of Burnt Corn Creek. “Fight the Americans,” they almost to death and bereft of his senses,” babbling idiocies in urged him. “If they prove too hard for you, send your women his verdant hell. For him the war of the United States of and children to Pensacola and we will send them to Havana; America versus the Creek Indian nation had had an inglori- and if you should be compelled to fly yourselves, and the ous beginning. Americans should prove too hard for both of us, there are ves- The prosperous mixed-bloods of southern Alabama were sels enough to take us all off together.” The advice was bitterly frightened. The white settlers were more so. The Battle of debated in long chofoka councils. During these debates the Burnt Corn would surely be avenged by the Indians. Again young Chief Red Eagle sat pondering, his eyes flashing rest- the council fires began spiraling over the Creek towns: Hoith- lessly over his gathered tribesmen, his lips compressed. In his lewaula, Sawanogee, Mooklausa, Woccocau, Fooschatchge, long blue-black hair he wore two eagle feathers. Red Eagle’s Eufaula, Hookchoioochee. Again chanting echoed through father had been a white Georgian, his mother, a mixture of velvet summer midnights, and the whites and mixed-bloods Creek and Scottish and French. He himself had elected his heard it as they tossed sleepless on their cots. They knew they Creek identity. His brother, John Weatherford, had taken the had to take shelter. white man’s way. He had not felt the same strong bonds to A mile east of the Alabama on cypress-studded Lake Ten- Creek earth and to the mystical Creek religion which taught saw lived Samuel Mims, who had built himself a rambling the identity of man and nature under Isakita Immissi, the frame house and large storage sheds. He had plenty of fresh Master of Breath. water from nearby springs. Here the settlers quickly erected a Red Eagle knew that so far the Creek War had really been stockade around an acre of sandy Alabama earth; they left a civil war. His half-brother David Tait was a Red Stick dancer; 500 portholes in the fence, each one three and a half feet a sister and all her sons were also in the war party, while her from the ground. They put up two unwieldy gates, one on husband, McNac, had fled to Fort Mims. When Red Eagle the east and one on the west. Within the fort they hewed out spoke at last in the chofoka it was to say tersely: “Do not temporary cabins, and at the southwest corner they started a avenge Burnt Corn. Civil War will only weaken us.” In Fort blockhouse. To the south was a potato field, dotted by a few Mims the Creeks had many relatives, and there were white ramshackle slave cabins. Between the fence and Lake Tensaw and black women and children there as innocent as the red tall slash pines flashed high needles in the sun; on the north women and children of the Creek villages. Red Eagle was lis- were dense cane swamps, on the east trackless marshes. Fort tened to, for he was trusted as a man of honor, but the Red Mims was possibly the most vulnerably situated outpost in Stick warriors outvoted him. They then asked him to lead the history of the American frontier. Men might hide unde- them on a Fort Mims expedition. No one had a better repu- tected on any side of it. tation than Red Eagle as a fighter and a commander of men. The settlers did not wait for the blockhouse to be finished. For the sake of his honor he consented; his loyalty was with They poured in with their featherbeds and cookpots, spin- his nation. The fort would be shut tight; the battle could be ning wheels and axes and dogs and rations of dried meat. turned into a token charge against an impregnable target, When Major Daniel Beasley arrived to take charge, he found and such a token would surely satisfy the families of the war- two of the youngest men in what passed for command. The riors killed by the whites at Burnt Corn. picketing needed to be strengthened, the blockhouse to be On August 29, two young blacks were ordered to mind completed and two more built and scouts sent out to tell any some Fort Mims cattle in a nearby field. Not long after they friendly Indians that if they were hungry there was food for passed through the gate they came running back with the them at Fort Mims. Possibly Beasley himself believed that news that they had seen 24 Indians in war paint. Hurriedly, an there were friendly Indians even after the unprovoked attack officer rode to the spot with the blacks and a detachment of at Burnt Corn Creek. By this time there were 553 people horses. There was not a sign of the enemy. The officer and his jostling each other in the fort: civilians, whites, half-bloods, horsemen were disgusted. At sunset the blacks were dragged officers and recruits, black slaves, and bedraggled women in back to Fort Mims. One of them was tied to the stockade and faded calico who nursed the inevitable sick in the Alabama beaten until his dark back was striped red with blood. The swamp country in high summer. Malaria and dysentery owner of the other refused to let his slave be punished for claimed fresh victims daily; within the stockade the stench of lying and was ordered by Major Beasley to leave the fort by 10

Winter 2002 / Civil Rights Journal 27 o’clock on the morning of August 30. By then fled the people of Fort Mims. “Oh, God, I am a the slave who had been flogged left the fort dead man!” cried the father of Samuel Mims as again to tend the cattle. Once more he saw his scalp was lifted from the pulp of his a large group of Indians in the nearby for- head. Somebody shouted, “To the bastion! est. But this time, his back swollen with To the bastion!” A Spaniard from Pen- lashes, he fled to a distant settlement sacola knelt with sandspurs digging into where he might be believed. In the his knees, crossing himself. A black meantime, the other slave’s owner slave exultantly delivered a white child had abandoned his defense. The hap- to one of the Red Sticks. Fort Mims less black was tied to the stockade in burned on, and its stench now was the hot sun where he waited to be that of a charnel house. Five hours beaten. Some of the soldiers sprawled later the Indians collected the booty on the ground laughed at him; others that was left and melted away to indifferently played cards. A group of spend the night in the forest, its stolid teenagers danced by the open gate, trunks interlaced against the hectic while nearly a hundred small children light from the burning cotton gin. Not frolicked among the tents and, giggling, until midnight did the flames subside. By hid from each other behind the cabins. then the Red Sticks slept by their small Inside, the sick moaned fitfully. camp fires. But Red Eagle did not sleep. © Bettmann/CORBIS For Andrew Jackson, the war of the United States of America versus the Creek Indian nation had had an inglorious beginning.

Red Eagle and his men—a thousand Red Sticks—waited in In the fetid fog of early morning, he ordered his braves to the swamps, their view of the fort obscured by thick cane. bury the Fort Mims dead. Quietly they began laying them Their faces were painted black and their arms and legs yellow, between rows of potatoes, covering them with loose dirt for they had taken the path of war. They carried medicine and thickly clustered potato leaves. But there were too bundles, the red sticks of invincibility, and their tomahawks, many corpses, and the Indian wounded were moaning in and they also carried rifles and guns from Panton Leslie and pain, begging to be returned to their villages. Some were put Company. At noon they heard the fort’s drum summoning into palmetto canoes on the Alabama; others left on foot. A the officers and soldiers to lunch. For a breathless moment party of them staggered to Burnt Corn Creek, where they longer they waited. Then, with a massive whoop, they sprang died. In the forest, terrified dogs ran and yelped. Also in the forward. Only then was Red Eagle close enough to see, to his forest a Red Stick warrior named Sanota hid. In Fort Mims, horror, that the fort gate stood wide. His warriors rushed he had found a woman who had once befriended him. He ahead. Beasley hurried to the gate and tried to shut it, but it had hurried away with the woman and her children, was banked in Alabama soil and wouldn’t move. In a single explaining to his fellows that he wanted them as slaves. For blow Red Sticks felled Beasley, then left him to crawl behind weeks he hunted game for the little family; eventually, the gate, where he died of his gashes. Five designated when they were strong enough, he guided them to a white prophets began dancing Red Stick dances; some of the sol- settlement and then faded back into the wilderness from diers managed to get to their weapons and shot them down. which he had come. At Fort Mims, a party of militia arrived Red Eagle was shouting, trying to hold his men back. “See!” to bury the dead. A young captain swallowed hard: “It is a he roared out, “the Red Stick prophets weren’t invincible!” promiscuous ruin.” But there was no stopping the Indians. They killed soldiers, Early in September, at an inn in Nashville, Tennessee, settlers, blacks, women, and children. Outside the pickets Jacksa Chula Harjo lay dying. The blood from a dueling another group of prophets had gathered to dance and shriek wound was soaking through the two mattresses underneath their incantations. him. All the frock-coated physicians of Nashville were gath- When the Indians set fire to the main building as well as the ered gravely at his bedside, sure the end was near. His left sheds, the flames fanned into a sunburst, and their smoke sti- shoulder had been shattered by one bullet, and another had

28 Civil Rights Journal / Winter 2002 imbedded itself in the upper bone of his left arm. All but one A few days later, Jackson led his troops into Talladega. “We of the doctors agreed on amputation. Jackson was only half- shall repeat Tallussahatchee,” he said confidently. But his conscious, but as he heard the rising and falling of their ranks broke; veteran army men blamed it on draftees. Later voices he began to realize what was being said. “I’ll keep my the draftees started to mutiny. Jackson held them at bay with arm,” he rasped. his rifle resting on the neck of his horse; his left arm was still On September 12 he was still alive and convalescing at the useless. “I’ll shoot dead the first man who makes a move to Hermitage, his Nashville plantation. He was in bed when the leave!” he thundered. That ended the mutiny. news of the Fort Mims massacre came to him. “By the Eter- The warriors of eight Creek towns gathered in Artussee on nal, these people must be saved!” His voice grew stronger as the east bank of the Tallapoosa River, at the mouth of Calebee he raised himself on feather pillows and cried vengeance for Creek. It was a place sacred to the Red Sticks, “beloved the whites of the Alabama frontier. Soon he was sitting up ground” that had been reserved for Creek war councils. and announcing to the men of his regiment: “The health of Surely the magic sticks, the incantations, and the Dance of your general is restored. He will command in person!” the Lakes would protect them here. But the Red Sticks hadn’t Shortly thereafter he swung onto a tall horse to ride reckoned on the bizarre reinforcements which arrived to against Red Eagle and the Red Sticks in their Moon of Roast- swell Jackson’s ranks. Four hundred friendly Indians, mostly ing Ears. Fastidious politicians in Washington hadn’t liked Choctaws but some Creeks who opposed the Red Sticks, Andrew Jackson when he had represented his district in Con- arrived in the care of a Jewish trader named Abraham Morde- gress. “A tall, lanky, uncouth-looking personage,” they had cai who had a reputation as “a queer fellow” among the sniffed. “Queue down his back tied with an eel skin . . . Dress Creeks. He traded his wares for ginseng root, hickory nut oil, singular . . . Manners those of a rough backwoodsman.” But and pelts. What the Indians didn’t know was that hickory backwoodsmen were better at dealing with rebellious Indian nut oil was considered a delicacy by French epicures in New chiefs than perfumed dandies were. In Winchester, Virginia, Orleans. Mordecai sold it there for many times more than another “rough backwoodsman” prepared with his regiment what he had paid for it. Sometimes Mordecai was “amorous.” to march against the Creeks. His name was David Crockett. He had been charmed by a Creek squaw, wife of a Red Stick Driving hard into Alabama, where Choctaw Chief Push- warrior, and emerged from this intrigue with a thrashing that mataha joined them (Choctaws and Creeks were traditional had left him unconscious and his trading post a heap of enemies), Jackson’s forces descended on Black Warriors’ ashes. The Red Sticks recognized Mordecai only too well Town, a Creek settlement on the Black Warrior River, where when they saw him. They also recognized many of their they sacked what they could and then razed the place. The brother Creeks who, with Jackson’s soldiers, put the torch to Creeks had fled before them. Then Jackson turned south, Artussee’s houses. This time 200 Creek Indians were burned establishing forts as he went. By early November he was alive; 400 of their wooden houses and outbuildings went up camped at Ten Islands, near present-day Gadsden, from in smoke, and women and children and infants perished in where he sent out his subordinate John Coffee to destroy the a second avenging of Fort Mims. When the news reached Red nearby Creek town of Tallussahatchee. Just after sunrise, Cof- Eagle, he led his warriors to Ecunchate, the most holy ground fee’s men rushed up to the doors of the Creeks’ houses; in a of all, where they believed they would truly be unconquer- matter of minutes they had killed every warrior in the town, able. Not only would red sticks protect them, but stout fenc- though “the enemy fought with savage fury.” The surprised ing and a location atop a river bluff. Ecunchate symbolized Red Sticks, Coffee noted, “met [death], with all its horrours, the relationship of the Creeks to the earth. Its sacredness rep- without shrinking or complaining. Not one asked to be resented the sacredness of every other inch of Creek soil spared, but fought as long as they could stand or sit.” Coffee’s where Creeks hunted or tilled. troops were not satisfied with killing the 186 warriors of Tal- In marched the troops of Jacksa Chula Harjo. The Creeks lussahatchee. For good measure they shot down women and hastily evacuated their wives and children into the sanctuary babies until the ground ran vermilion. They went from house of surrounding swamps across the river. Most of the Red to house slashing and firing. Tallussahatchee had been a Sticks also were able to escape when Jackson’s cavalry failed to peaceful little town without any defenses whatever. One of understand orders and charged. But the soldiers were exul- the Indian women “had at least twenty balls blown through tant; they had the destroyer of Fort Mims, Red Eagle himself, her,” David Crockett noted. Afterward he added, “We shot at bay. Red Eagle, however, was too quick for them. He leaped them like dogs.” The avenging of Fort Mims was crueler than onto his gray horse and began a wild ride along the banks of the original massacre since it involved a place utterly without the Alabama. With Jackson’s cavalry in pursuit, horse and fortifications. Fort Mims, Red Eagle had assumed, would have man flew against the wind until they reached a high bluff 15 protection. Not a warrior escaped from Tallussahatchee. One feet above the river. Red Eagle hesitated only a moment. of the Creek houses had 45 people inside it when Coffee’s Then, “with a mighty bound” he and his horse pitched over men put the torch to it. The Indians’ screams didn’t bother the bluff to the river below, where they disappeared beneath the soldiers; they spent the next day “eating potatoes from the waves. Incredulous, Jackson’s horsemen watched horse the cellar stewed in the oil of the Indians we had burned up and man rise again. Red Eagle held his horse’s mane with one the day before which had run down on them.” hand and his rifle with the other. Ecunchate, the Holy

Winter 2002 / Civil Rights Journal 29 Ground, had been reduced to smoldering ruins, but Red Eagle have come of your own accord. You see my camp. You see my survived. The winter of 1814 passed with Jackson on an elu- arms. You know my object. If you think you can contend sive Red Eagle’s trail, while Jackson’s troops laid waste to against me in battle go and head your warriors.” Creek towns. Now Red Eagle was determined never to give “Ah!” Red Eagle’s smile was dry. “Well may such language up. Jackson had turned Indian against Indian in his determi- be addressed to me now. There was a time”—he paused—“a nation to subjugate every red man in the United States. At the time when I could have answered you. I could animate my Horseshoe Bend of the Tallapoosa River, Red Eagle gathered fighters to battle, but I cannot animate the dead. General Jack- his Red Sticks to build a breastwork of logs; assailants would son, I have nothing to request for myself, but I beg you to send be exposed to cross fire. Into the Horseshoe Bend poured the for the women and children of the war party who have been militant braves of Hillabee Town, Oefuske, Oakchoie, driven to the woods without an ear of corn. They never did Eufaulahatchee, Yauca, Hickory Ground, and the Fish Pond any harm. Kill me instead, if the white people want it done.” Town, all of them waiting for Andrew Jackson who had been Wordlessly Jackson offered Red Eagle a glass of brandy. joined by a regiment of Cherokees from north Georgia and The warrior drank it. “Save the wives and children of the the Carolinas. These Cherokees believed that in the Red Sticks Creeks, and I will persuade to peace any Red Sticks remaining they were fighting renegade outlaws and that Jackson cher- in my nation,” he said. Deliberately, Jackson nodded. Then ished their loyalty and would reward them well. It was the he extended his hand. Red Eagle took it, looked at his adver- Cherokees who captured the Red Sticks’ canoes by stealth sary’s craggy features for a long moment and then, bowing, departed. With that handshake, the two principal architects of the ultimate fate of the American Indian had sealed a bargain. “If we part with them, Red Eagle’s leadership in war had angered America. It had also convinced Andrew Jackson that America’s frontiers we part with our blood.” would always be frontiers while there were Indians to annoy the settlers. The Indians must go. They couldn’t be exterminated wholesale because of world opinion. But they and took them to the other side of the river, where they were could be uprooted and packed off to some remote corner of soon filled with Choctaws, Cherokees, and Americans who the country where they wouldn’t be in the way. This haven paddled furiously across to throw torches into the warriors’ would belong to them, they would be told in the traditional midst at Horseshoe Bend. The breastwork went up in smoke. language of America’s Indian treaties, “as long as the green The defenses of the Red Sticks crumbled. The Indians died at grass grows and the water flows,” provided they began bik- knife- and gunpoint, red sticks clutched in their charred ing en masse with a military escort to get there. At the hands. Most of the warriors who tried to escape by plunging Horseshoe Bend of the Tallapoosa River in Alabama, into the Alabama were caught by Jackson’s men and Andrew Jackson silently pledged himself to the policy of drowned, their heads wrenched by hostile hands under the Indian Removal, which in his presidency was to become brown water. After it was all over, gunsmoke drifted above the law. It would be a simple law: any Indian who remained on Tallapoosa while mockingbirds sang obliviously and sunlight his ancestral lands affirming his Indian identity would be a streamed through the vapor onto the corpses. Only 10 Red criminal. The Indians would be relocated somewhere on Sticks had escaped. But one of them was Red Eagle, and at the the West’s Great Plains. It didn’t matter that the Great Plains junction of the Coosa and Tallapoosa he tried heartening the already had Indian inhabitants who could hardly be other nine. It was no use. This, too, was Beloved Ground, but expected to welcome red refugees. But the government the demoralized Creek warriors had lost their faith in the would tout as a mecca the grasslands and forested river bot- Religion of the Dancing Lakes, in Tecumtba’s prophecies and toms near the Red and Arkansas and Verdigris rivers, in Red red sticks and the blood-tingling music of war. They left Red Eagle’s time an all but uncharted mystery. Not until five Eagle to muse at the Beloved Ground alone. decades had passed did the Choctaw Indian Allen Wright One evening, in front of his quarters, Jackson was give it a name—perhaps not without irony. The Choctaw “accosted by an unarmed, light-colored Indian” who wore word for red was houma; okla meant people. Oklahoma was buckskin breeches and tattered moccasins. Indian destiny before it graced a single map. Not an Indian “General Jackson?” alive, except those who already inhabited it, considered it “Yes?” Holy Ground. East of the Mississippi, Ecunchate was lost “I am Bill Weatherford.” Inside, Red Eagle explained why land, a lost dream, and the road that led out of it forever he had come to surrender to his antagonist. “I can oppose became the Trail of Tears. C R you no longer. I have done you much injury. I should have done you more, but my warriors are killed. I am in your THIS ARTICLE IS REPRINTED FROM THE TRAIL OF TEARS, BY power. Dispose of me as you please.” GLORIA JAHODA, 1975, HENRY HOLT AND COMPANY. JAHODA, “You are not in my power,” Andrew Jackson answered WHO WROTE EXTENSIVELY ABOUT FLORIDA’S HISTORY AND ECOL- slowly. “I had ordered you brought to me in chains, but you OGY, DIED IN 1990.

30 Civil Rights Journal / Winter 2002 THE DESTRUCTION OF THE KINGDOM OF KONGO

n 1482, the Portuguese navigator Diego Cao set sail from Lisbon harbor in search by David Lopes of a passage to the Indies. In a three- masted caravel, Cao traveled in a broad arc past the Canary, Savage, Madeira Iand Cape Verde Islands; rounded Cape St. Vincent and Cape Nao in the Maghreb; suffered his sailors’ puns—“He who reaches Cape Nao will return or nao (not)”; revictualed at Arguin, a slave entrepot above the Senegal River, at Fort Mina, an armed post flush with gold dust from the trans-Saharan trade, and at Cape Santa Catarina below Africa’s bulge, until then the outer limit of the known world. Then, trimming his lateen sails to navigate against the prevailing headwinds, he sailed into the Southern Hemisphere, in whose unfamiliar skies neither his astrolabe nor his almanacs availed him further. Soon he came to the effluence of a river whose discharge sent sweet red water and clumps of grass and bamboo for miles into the Atlantic, so he named it the Powerful River, or Rio Poderoso. Thinking it might lead him to the fabled realm of Prester John, he coasted into its mouth on an afternoon breeze. Crocodiles and hippopotamuses lay stunned by heat on banks of brilliant orchids. Flocks of parrots chattered at sunset from tangles of mangrove. Eagles wheeled overhead. Like crabs crawling along a coastline, the Portuguese had been exploring the African lit- toral and the Atlantic islands for decades before Cao reached the Kingdom of Kongo. The Canaries were mentioned by the intrepid Roman geographer Pliny, who called them the “Fortu- nate Isles,” and died observ- ing the eruption of Vesuvius in A.D. 79. The Canaries lin- gered in the European imagi- nation, “patches of twilight in the Sea of Darkness,” but it wasn’t until 1339 that they

Early 16th-century Portuguese map of Africa, created 1508.

Winter 2002 / Civil Rights Journal 31 were rediscovered and settled by the Portuguese. Thereafter, (Stanley) Pool, and from Luanda Island into present-day the pace of exploration quickened. In 1415, Prince Henry the Angola. It would have been slightly larger than Portugal, Navigator, spurred on by his astrologer, skimmed the profits and nearly as populous. from his Lusophone soap monopoly, equipped an expedition, The king’s household, an enclosure a mile and a half and seized the town of Ceuta, opposite Gibraltar. In 1419, a around, contained walled paths, palisades, decorated huts, Genoan captain in the pay of Prince Henry struck Madeira. courtyards, and gardens. One early traveler compared it to Settlers named the first children born there Adam and Eve. the Cretan labyrinth. Trumpeters and soldiers stood guard The Azores and the Cape Verdes were discovered in mid-cen- at its entrance. Mbanza Kongo, the capital city, rose on a tury as navigators inched down Africa’s bulge. Everywhere cliff overhanging a river and a narrow valley fringed with they went, the Portuguese kidnapped a few of the locals, forest. On its fertile plateau two springs gave crystal-clear brought them to Portugal, taught them Christianity, and sent water. Estimates of the population vary: at the time the Por- them back. Also, because they had heard from Jewish traders tuguese arrived, 60,000 to 100,000 people were said to live about the Mansa of Mali, a man so rich that on his hajj in in the capital; the only other town of note, the capital of the 1324 he had single-handedly caused prices in Egypt to spiral, coastal province of Sonyo, had a population of about they asked about gold. Some historians wonder which motive 15,000, and the various other provincial capitals were con- was more important. Others say both: siderably smaller. From his throne of ivory and sculpted wood, the king It was this mixture of the deeper passions—greed, wolfish, ruled through an elaborate network of councilors and gov- inexorable, insatiable, combined with religious passion, harsh, ernors, clan elders and local chieftains, priests and electors. unassailable, death-dedicated—that drove the Portuguese He maintained that network through alliance, marriage, remorselessly on into the torrid, fever-ridden seas that lapped trade, and force. Of his 12 councilors, four by statute were the coasts of tropical Africa and beyond. women. In theory, the king could neither declare war nor open a road without the councilors’ consent; in practice, What historians know of the Kongo Kingdom is fragmen- the king’s power depended on his political skills. A strong tary. Sources include contemporary European accounts, pri- king, for example, could replace his governors at will; a vate letters, church correspondence, bills-of-lading, papal weak one struggled to maintain their loyalty. No rule of pri- bulls, missionary memoirs, slaver propaganda, embassy mogeniture applied. Instead, clan elders picked the future appointments, oral histories, ethnographic fieldwork, and a king from among the sons of the dying king’s lesser wives. pirate’s autobiography. Researchers have combed the archives Despite the fact that successions were sometimes bloody, it of the Vatican, Rome, Florence, Milan, The Hague, Madrid, was a system that ensured continuity: anyone sharp enough Lisbon, London, Paris, Brussels, and Sao Tome. On splint to earn the clan elders’ loyalty was usually savvy enough to houses above the Congo River and in decaying hillside vil- rule. Sometimes border provinces tried to break away, and lages, anthropologists have sat down with tape recorder and sometimes peasants led local tax revolts, but the benefits of note pad to sift the memories of old men. Despite these trade, on the one hand, and the power of the king to levy efforts, there’s a lot that isn’t known. Archives in Africa were an 80,000-troop army, on the other, were usually enough to destroyed by “cannibals” and fires. Sources contradict each discourage rebellion. other. Descriptions are vague or hostile. Parsing the old doc- When a man died, he was officially mourned for eight uments in the light of anthropological knowledge of present- days. Then the man’s principal wife led the relatives to the day societies—a technique favored by many but not all nearest river, cut the belt that her husband had worn in life, researchers—is a bit like solving story problems by looking at and threw it in. The river carried the belt away, “together the teacher’s manual, with this punchline: the manual goes with the sadness for the lost one.” During that period, male to a later edition of the problem book. kin wore white whenever they approached the corpse—white When the court and king of the Kongo first learned being the color of the dead. On the eighth day, women that a whale-colored people from a place called Mputu had applied a mix of powdered charcoal to their faces and chests arrived at the mouth of the Nzere, their sails “like knives in to signify the end of mourning, though a variety of rites and the sun,” the kingdom was perhaps only six generations prohibitions were in effect for up to a year thereafter. The from its founding, late in the 13th century. Like the great dead were buried in a special thicket. On their graves were empires of West Africa, the Kongo emerged by subjugating placed objects indicating their status in life: chairs and cups its neighbors through war and incorporating them into a on the tombs of title holders; baskets of roots and herbs on broad-reaching trading zone. The wars of conquest were those of curers; hammers, bellows, and anvils on those of not remembered for their difficulty. One Kongo noble told smiths. On the tombs of hunters were placed the skulls of a 17th-century chronicler that the original inhabitants of wild beasts. his region were small men with big heads, fat bellies, and Besides the ancestors, there were gods of earth, water, and short legs. When they fell down, he said, they had trouble sky, with their accompanying cults, symbols, powers, and getting up. At its peak, the kingdom formed a rough priestly castes. Some governed the fertility of the land; others square stretching from the mouth of the river to Malebo the success of war or the acquisition of wealth and office. For

32 Civil Rights Journal / Winter 2002 View of Mbanza Kongo, capital of the Kongo Kingdom, 1591. the Kongo, a chance encounter with a peculiarly shaped twig so riveting: one can see, in those early moments, how things or stone was loaded with meaning; whirlwinds incarnated might have turned out differently. the spirits of noble ancestors; grubs caused rain; albinos, In 1491, King Joao of Portugal sent to “his royal brother” dwarves, and twins could cure infertility, kill thieves, or pre- the king of the Kongo a richly provisioned expedition that vent elephants from destroying the house; and disease was included priests, carpenters, stone masons, and women, who the invariable outcome of witchcraft. Fifteenth-century were to instruct the Kongo in housekeeping. (An expedition Christians brought with them a religion that had grown the following year, to the nearby island of Sao Tome, aggressive, doctrinaire, and remote; the landscape of the included two German printers, with printing press.) Received Kongo was charged with ambiguous significance, replete with a jubilation that even they must have found astonish- with signs and symbols of the sacred. ing, this first batch of colonizers went to work. Within If, as many scholars now insist, the European explorers months, the masons had built a stone church and the priests did not “discover” the world—it had, after all, been discov- had baptized the king and most of the nobility. ered by countless indigenous peoples already—they never- For their part, the Kongo thought that the Europeans were theless inaugurated a global process of dis-enclavement, water spirits, gods of fertility. Painted in white and naked to the threading the first tenuous connections between the dis- waist, they had greeted the European colonizers in a ceremony persed and disparate civilizations of the earth. For many non- that was, according to the historian Ann Hilton, “clearly an Westerners that process would result in destruction, dispos- nkimba [fertility] cult assembly.” Soon after the Europeans session, or death. And because freedom emerged as a defining arrived, the brother of a traditional high priest discovered a ideal of the West during an era in which the worst abuses of black stone in the shape of a cross, proving to the Kongo that that freedom were routine, our vision of the past can take on the newly introduced religion belonged, as they had suspected, a clarity it lacked in the event, obscuring how tentative, to the dimension of water and earth spirits. (After all, the uncertain—in a word, explorative—those early oceanic whites resembled albinos, who were thought to have special adventures were. More medieval than modern, the explorers powers in this regard.) The Kongo king then insisted on being learned by going where they went. And in doing so, they not baptized before going off to war, because he wanted the pro- only redrew the map, they also discovered the countless ways tection that the European ritual might give him. people had devised of being human. That is what makes the Given the odd ideas they had about each other—the Por- European encounter with the Kongo—the first large-scale, tuguese, to give one example, thought that if they traveled previously unknown civilization the Europeans came upon— too far inland the moon’s rays would swell their heads—it’s

Winter 2002 / Civil Rights Journal 33 not surprising that the Kongo and the Portuguese often it was largely in order to meet the labor demands of the found each other baffling. What is surprising is how quickly Atlantic island and Brazilian cane sugar plantations that the the Kongo were able to take advantage of their contact with slave ships first came to Africa, leaving in their crowded wake Europe. Fruit from Asia, the Americas, and the Mediter- a subdued and chastened continent. Four centuries of slavery ranean—orchards of guava, lemon, orange, papaya, papaw, had their genesis in the cane fields outside Jerusalem. mango, kumquat, and pineapple—throve in the Kongo’s In the history of this period there is no more pivotal or tropical soil. The American cassava, or manioc tuber, replaced enigmatic figure than Mvemba Nzinga. Known to generations millet, sorghum, and luco as the starch of choice. Pineapple of Africans by his Christian name, Afonso I, he ruled as king wine, sugarcane beer, English rum, and Indian ganja all of the Kongo from 1506 to 1543. So little is known about him joined palm wine on the shelf of local intoxicants. The that he reflects to every age something of its own image: to Kongo quickly adapted European technology that they found contemporary Portuguese he was a figure of miracles, a soldier useful: the Kongo king substituted an exotic horse tail for the saint, a Christian scholar who knew more of the Bible than elephant tail he had used as his own personal fly whisk. The the priests who came to instruct him. Here is how one priest nobility saw the benefits of literacy and sent their sons—and described him in a letter to King Manuel of Portugal: sometimes their daughters—to missionary schools early on. In the mid-17th century, paper was in such demand that it May Your Highness be informed that his Christian life is such cost a hen per sheet, and a common missal cost a slave. that he appears to me not as a man but as an angel sent by the More surprising than the Kongo adoption of European Lord to this kingdom to convert it, especially when he speaks crops and technical skills is the kingdom’s acceptance of and when he preaches. For I assure Your Highness that it is he some aspects of Christianity and Portuguese political organi- who instructs us; better than we he knows the prophets and zation. Like Kemal Ataturk or the leaders of the Meiji Restora- the Gospel of Our Lord Jesus Christ and all the lives of the tion, the kings who ruled the Kongo in the 16th and 17th saints and all things regarding our Mother the Holy Church, centuries responded with astonishing enterprise and creativ- so much that if Your Highness could observe him yourself, ity to the European challenge. “Not until our own time,” you would be filled with admiration. He expresses things so asserts the historian Jan Vansina, “would such an attempt at well and with such accuracy that it seems to me that the Holy massive but free and selective acculturation be seen again.” Spirit speaks always through his mouth. I must say, Lord, that The Kongo kings embraced elements of Catholicism to give he does nothing but study and that many times he falls asleep their rule a stronger ideological basis; they struggled to secure over his books; he forgets what time it is to dine, when he is their succession along Portuguese lines. And yet, despite these speaking of the things of God. ingenious, sometimes heroic efforts, the Kingdom of Kongo was destroyed, as completely as the empires of the Aztecs or To later missionaries, reading these accounts in what the Incas. By 1678, a visitor to Mbanza Kongo reported that appeared to them a lapsed and impenitent era, the age of the capital had been sacked, and that elephants were roaming Afonso was a gilded moment, the focus of a consoling nos- in the ruins, eating bananas off the abandoned trees. talgia that was distinctly Christian in its location of an unre- In a word, the reason for the Kongo’s demise was sugar. deemed present enfolded in a grace past and future. In the Sugar had been known to Europe from about the 10th cen- 1960s and 1970s, the image of Afonso underwent another sea tury. Fulcher of Chartres, who accompanied the army of the change: to liberals, he appeared as a “forest Othello,” too First Crusade and chronicled their hardships, is one of the innocent and trusting to understand that his dream of bring- first Europeans to mention it: ing European civilization to Africa was doomed by European duplicity—by priests eager to swap missals for slaves. To pan- In those cultivated fields through which we passed during our African nationalists, he became one of the first great figures of march there were certain ripe plants which the common folk resistance, the black king of legend who struggled to save his called “honey-cane” and which were very much like reeds. . . . people from bondage. In our hunger we chewed them all day because of the taste of The most recent scholars to have studied the early history honey. However, this helped but little. of the Kongo, parsing the few contemporary documents with sophisticated textual and analytic tools, present a more pro- But it was not until the late 15th and early 16th centuries saic, complex picture. And perhaps it is because we see some- that sugar replaced honey as the sweetener of choice, and thing of ourselves in the canny and prismatic spirit who thereafter it gradually became a staple. On that appetite the emerges that the portrait seems at once more ambiguous and great sugar plantations of the Atlantic islands and Brazil flour- more realistic than earlier ones. ished. And in their fields and mills, the institution of chattel Afonso seized power in 1506, upon the death of his father, slavery, which since Roman times had been all but extin- King Joao I. As the firstborn son of the king’s principal wife, guished, flickered back to life. One historian has written that Afonso was ineligible for succession. By tradition, that right the sugar plantations prefigured the transformation of Euro- belonged to sons of the king’s lesser wives. But Afonso had pean society, “a total remaking of its economic and social the Portuguese in his silk tabard pocket. As the governor of basis.” For Africa, that transformation would be a bitter one: Nsundi, the north-easternmost province, Alfonso had devel-

34 Civil Rights Journal / Winter 2002 In this sixteenth century drawing a Portuguese captain kneels before King Afonso, whose African subjects prostrate themselves on the ground. oped close ties with Europeans searching for Prester John. come face to face with the king, he was suddenly and entirely And as the firstborn, he was seen as the only legitimate heir routed, and put to flight. . . . Being overcome by fright, by Portuguese priests, a perception he did much to encour- Mpanzu rushed headlong into the ambush covered with age. Unlike his father and brothers, who had quickly lost stakes, which he himself had prepared for the Christians, and interest in the mundele’s religion because of its stricture there, almost maddened with pain, the points of the stakes against polygamy, Afonso maintained his commitment to being covered with poison, ended his life. Christianity. Accounts of the battle by which he won acces- sion to the throne show how helpful that commitment was. Afonso and the early chroniclers tended to ascribe his vic- Greatly outmanned, Afonso met his half-brother Mpanzu a tory to the Virgin Mary and St. James, “sent from God to his Kitima outside the capital. A Portuguese priest described what aid.” But the presence of Portuguese guns and cavalry in the happened next: ranks probably didn’t hurt Afonso, either. (In other accounts, Afonso had his brother put to death after the battle was won.) Here Dom Afonso, and his handful of men, were ranged Once in power, Afonso borrowed aggressively from against the pagans and his brother; but before the latter had Europe. He sent his sons to be educated in Portugal. One was

Winter 2002 / Civil Rights Journal 35 consecrated Bishop of Uttica by Pope Leo X—Africa’s first and Soon thereafter, settlers on the tiny island of Sao Tome, only bishop for 400 years—and another became a professor apparently impatient with the trickle of slaves Afonso was of humanities at the University of Lisbon. Afonso himself willing or able to export, opened their own slave depots at the seems to have studied everything. After reading five thick mouth of the Congo River. Under Kongo law, only criminals volumes of Portuguese law lent to him by a certain Balthasar and prisoners of war could be sold as slaves, so the Tomistas, de Castro, he quipped: “Castro, what is the punishment, in many of whom were themselves exiled Portuguese criminals, Portugal, for those whose feet touch the ground?” Afonso bribed chiefs, encouraged crime, incited rebellions, and insti- established schools in Mbanza Kongo and in the provincial gated wars. They also blackballed priests, killed messengers, capitals and sent the sons of hundreds of nobles to them. To refused to ship Afonso’s other products (chiefly copper and prevent the boys from sneaking away during their lessons, he ivory), defied the Portuguese king, and, along the way, intro- built high wooden fences around the schools. In 1526, he duced Africans to venereal disease. In 1515, Afonso wrote to wrote to the king of Portugal asking for more grammarians. Manuel asking that he be allowed to take over the island. In Though he never wavered in his profession of faith, 1517, he asked to purchase a boat, so that he could at least Afonso seems to have used Christianity like one of those fore- trade with the Portuguese without interference from the ground-background pictures that let you see two figures in Tomistas. “Most powerful and high prince and king my profile or, alternatively, a vase. To missionaries, he appeared a brother, it is due to the need of several things for the church devout Catholic; to Kongo, the beneficiary of a powerful new that I am importuning you,” wrote Afonso. “And this I prob- cult. He cleared the ancient thickets where the graves of the ably would not do if I had a ship, since having it I would send ancestors lay, and on them built churches. He called the new for them at my own cost.” In 1526, he wrote to Manuel’s suc- churches mbila, meaning tombs. He appointed the tradi- cessor, King Joao III: tional high priest of the water dimension to be in charge of the maintenance of the churches and the provision of holy The excessive freedom given by your factors and officials to water for baptismal rites. The priest, who had initially the men and merchants who are allowed to come to this opposed Christianity, became an ally. Afonso took the tradi- Kingdom . . . is such . . . that many of our vassals, whom we tional domain of witchcraft, with its concern for worldly suc- had in obedience, do not comply. We cannot reckon how cess, and onto it grafted Catholicism—a religion whose great the damage is, since the above-mentioned merchants prayers and relics were understood as European spells and daily seize our subjects. . . . Thieves and men of evil conscience fetish objects. Then he gave the new cult prominence as his take them because they wish to possess the things and wares own personal spiritual realm and used it to legitimize his rule. of this Kingdom. . . . They grab them and cause them to be Soon there were kingly cults, with their respective (Catholic) sold; and so great, Sir, is their corruption and licentiousness churches, in “every lordship and province” in the land. He that our country is being utterly depopulated . . . to avoid this, destroyed the fetishes of his opponents, and though he pre- we need from your Kingdoms no other than priests and peo- sented himself to Europeans as a “married Christian ple to teach in schools, and no other goods but wine and flour monarch,” he contrived to leave behind 300 grandchildren. for the holy sacrament; that is why we beg your Highness to In 1507, a year after seizing power, Afonso sent to Portugal help and assist us in this matter, commanding the factors that a shipload of copper and ivory. By 1511, however, he was they should send here neither merchants nor wares, because already complaining of the behavior of certain Europeans liv- it is our will that in these kingdoms there should not be any ing in his realm. In the first of 22 surviving letters between trade in slaves nor market for slaves. Afonso and successive Portuguese kings, he asked Manuel— the Portuguese king—to send an ambassador to the Kongo When this letter went unanswered Afonso tried to block capable of restraining them. In 1512, responding in a lengthy the slave trade himself, but this was impractical and maybe regimento (a sort of protocol), Manuel specified the kinds of impossible. The Kongo king’s power derived from being the military, technical, and religious assistance Portugal was pre- apex of the trading system. “If Afonso [had] ejected the Por- pared to give Afonso. Accompanying the missive were an tuguese traders,” writes the historian Anne Hilton, “the trib- ambassador and a contingent of priests, soldiers, and techni- utary governors would certainly have welcomed them and cians. The regimento asked about the prospects for acquiring hastened the disintegration of the state.” Instead, Afonso slaves: “This expedition has cost us much,” it concluded; “it established a commission of three royal officials to examine would be unreasonable to send it home with empty hands.” the slaves and determine whether they were “truly war cap- There were, in fact, few slaves available for purchase in the tives or kidnapped free men.” The commission had little Kongo, but Afonso raided a neighboring kingdom after a bor- effect. Afonso continued to complain of the “inordinate der skirmish and acquired 600 prisoners. These slave captains covetousness” the slave trade had induced in his kingdom, probably sold to the plantation owners of Sao Tome and to spoke of slavery as “that great evil,” and protested that the king of Akan, in West Africa, whose realm at that time “under cover of night” nobles and freemen were still being produced roughly 10 percent of the world’s annual gold out- stolen from their homes. And in a letter Afonso wrote to put. (In the early 1500s, gold and sugar were, pound for accompany five of his nephews and a grandson on their pound, nearly equally valuable.) journey to Portugal, he wrote:

36 Civil Rights Journal / Winter 2002 We beg of Your Highness to give them shelter and boarding and ifestly cruel that one wants to believe that from the start there to treat them in accordance with their rank, as relatives of ours was abundant resistance to it. This much can be said for with the same blood . . . and if we are reminding you of this and Afonso: in an era in which slavery was universally accepted, begging of your attention it is because . . . we sent from this King- he did everything in his power to see that his own people dom to yours . . . with a certain Antonio Veira . . . more than were safe; he resisted Portuguese slavers for 20 years, and only twenty youngsters, our grandsons, nephews and relations who cooperated with them when he was faced with the prospect were the most gifted to learn the service of God . . . The above of his country’s imminent collapse; in dire circumstances he mentioned Antonio Veira left some of these youngsters in the managed not only to ensure his nation’s survival, but saw to land of Panzamlumbo, our enemy, and it gave us great trouble its prosperity. There is, as well, some evidence that Afonso later to recover them; and only ten of these youngsters were may never have been as cooperative as the slavers would have taken to your Kingdom. But about them we do not know so far liked, even after he had established the slave markets. In whether they are alive or dead, nor what happened to them, so 1539, for example, eight Portuguese, led by a priest, burst that we have nothing to say to their fathers and mothers. into the cathedral where Afonso was attending High Mass (it was Easter Sunday) and sprayed the chancel with musket fire. Joao replied in 1529. He opened on a solicitous note. Did Ultimately, however, a letter like the one of 1540 shows Afonso no longer want to trade with Portugal? If that was his how sentimental it may be to imagine that Afonso felt any wish, so be it. But he should know that to refuse to engage in qualms about the trade itself. Few nations made out better trade was “contrary to the customs of all nations.” Here Joao plunged his knife: “It would be no honor to Afonso or to his kingdom . . . if it were said that the Kongo had nothing to The king’s household, trade and it were visited by only one ship per year. What glory, on the other hand, attended a kingdom capable of an enclosure a mile exporting 10,000 slaves annually!” Twisting the knife, Joao concluded, “If one of your nobles were to revolt against you, and a half around, rich with merchandise from Portugal, what then would become of your glory and your power?” contained walled paths, Given the immensity of what followed—9 to 11 million Africans shipped to the New World in the next three centuries, palisades, decorated millions more dead from wars fomented to secure slaves or from the horrors of the middle passage, an enduring legacy of huts, courtyards, and hatred and grief—a novelist might be tempted to portray gardens. Afonso in the labyrinth of his palace, weighing the imponder- able future of his kingdom against a trade whose sorrows he himself had experienced. Unfortunately, all we know for sure than the Kongo in the early years of slavery. “Through his is that by the late 1520s, a thriving slave trade had evolved at monopoly on European products,” writes Hilton, “Afonso was Malebo Pool in the northeastern corner of the Kongo, and that able to draw many of the neighboring groups into tribute and this was a trade Afonso could—and did—profit from. For one to create a greater Kongo which far exceeded the nuclear king- thing, the slaves came from distant lands, so that the Kongo dom of the late 15th century and which added to his wealth, were themselves no longer subject to the depredations of the prestige, and power.” By the late 1520s, the kingdoms of slavers. For another, the route the caravans took on their way Ngola a Kiluanje in the south and Matamba in the southeast to the slave ships passed through the capital, allowing Afonso had sent tribute. In the next decade, several states north of the to tax and regulate the trade. By the 1530s, 4,000 to 5,000 Zaire, including a prime copper-producing region, had also slaves were leaving Kongo shores each year, and the Milky sent presents, and so had groups from the eastern plateau and Way, which traced the axis of their movement, was nick- the southern mountains. By the time Afonso died, sometime named Nzila Bazombo—the Road of the Slavers—for the men in the early 1540s, the Kongo was one of the most powerful who drove them to the coast. In 1540, Affonso could boast to kingdoms in Africa, its people among the wealthiest, and its Joao of his kingdom’s importance to the transatlantic trade: position seemingly unassailable. It would not be so for long. “Put all the Guinea countries on one side and only Kongo on In 1568, a mysterious ethnic group from Central Africa the other and you will find that Kongo renders more than all attacked the Kongo, and like barbarians at the gates of Rome, the others put together . . . no king in all these parts esteems laid waste to the countryside and sacked the capital. They Portuguese goods so much or treats the Portuguese so well as attacked with such speed that the king of Kongo had hardly we do. We favor their trade, sustain it, and open markets and any warning of the invasion or time to raise his troops. The roads to Mpumbu where the slaves are traded.” court, assorted European merchants and missionaries, and After reading Afonso’s eloquent and well-tempered letters thousands of ordinary citizens of Mbanza Kongo fled to an protesting the trade, it is, of course, dismaying to come across island on the Congo River, where they suffered from chronic a letter like this one. The transatlantic slave trade was so man- hunger and the bubonic plague. For three years, crocodiles

Winter 2002 / Civil Rights Journal 37 feasted on the hundreds of dead and dying who were cast slaves from the interior. By the early 17th century, Angola was into the surrounding waters, and the Kongo king sent one furnishing a quota of 12,000 slaves per year, most of them SOS after another to his royal brother in Portugal. Eventually Kongolese subjects, to European merchants. a 600-man contingent of Portuguese soldiers arrived via Sao In addition, the Portuguese began distributing guns more Tome, rallied the remnants of the Kongo army, and routed widely, which altered the balance of power away from the the invaders. It turned out, comic book style, that the sound capital and toward the provinces. The Kongo’s coastal of gunfire frightened the “cannibals” half to death. province of Sonyo declared independence, and neighboring The new, post-restoration Kongo resumed its role as a pri- states that had once formed part of the greater Kongo broke mary exporter of slaves to the New World. But the lesson of free as well. Battles for succession harrowed the Kongo; eight the Portuguese repulsion of the invaders was clear: Europeans kings ruled in the period between 1614 and 1641. might not yet be able to invade and occupy African states, In 1665, a bitter dispute over mineral rights with the Por- but they held the balance of power among them. That lesson tuguese governor of Luanda, led to a final, disastrous conclu- was not lost on the powers emerging on the African scene in sion. In a Manifesto of War dated July 13, 1665, the then- the early 17th century. By now, the trade had grown so lucra- Kongolese king, Antonio I, ordered all able-bodied Kongo tive that both the Portuguese and the Kongolese found them- men to enlist in a fight to protect their “lands, possessions, selves competing for business. (The volume of the African women and children, their lives and their liberties.” Accord- slave trade tripled from 1500 to 1575, and doubled again in ing to later Portuguese estimates, 100,000 Kongo, 190 mus- the next quarter century.) French and British pirates, like ket-bearing mulattos, and 29 Portuguese answered his call. Andrew Battell and Sir John Hawkins (who was knighted for On October 30, Antonio and his troops met the combined forces of Luanda and Portugal in fields outside Mbwila, a mar- ket town in north-central Luanda. It was drizzling and Anto- nio hoped the rain would dampen the Portuguese guns. It did “It is our will that in not. The Kongo lost 5,000 men, including Antonio, his two these kingdoms there sons and two nephews, four of the seven governors, various court officials, 95 title holders, and 400 other nobles. Por- should not be any tuguese losses were minimal. The Kingdom of Kongo never recovered. It splintered trade in slaves nor into hundreds of competing chieftainships, all led by infantes claiming descent from Afonso I, all variously coop- market for slaves.” erative or mercenary, and all dependent on the slave trade for their survival. Soon there seemed to be a slave factory in every village in the land, and the trade fed, and fed off of, a his piracy by Queen Elizabeth I), raided the Portuguese cargo civil war that verged on complete anarchy. Over the years, ships. The Dutch, nearing their moment of global ascen- visitors to the capital Mbanza Kongo reported that the pop- dancy, waged war on Portugal in Europe and abroad. Mean- ulation there varied from 100 to 5,000 people, depending while, kingdoms to the north and south of the Kongo on the transitory success of the local chief in reviving the emerged as major slave-producing regions, and innumerable idea of the kingdom. But as a legitimate, viable political tiny ports along the West African coast hung out the slaver entity, the Kongo died in 1665. shingle as well. Most of these places could sell slaves for less Or perhaps it is more accurate to say that the Kongo, no than the Kongo because slaves elsewhere didn’t have as long longer a state on a map, became, as it had been before Cao, a march to arrive at the coastal depots, and weren’t as heav- wholly a place of the imagination. Once, Africa was a land ily taxed as those that passed through Mbanza Kongo. (Prices of a million strange shadows, known only by the stories for slaves varied dramatically over the years, but tended to fall travelers overheard in distant marketplaces and repeated in during the 17th century and rise again in the 18th.) tallow-lit taverns far from home. Citied and peopled by Pushed out of the slave trade, the Kongo staved off decline countless Scheherazades, the continent the medieval car- for a half century by producing cloth that the Portuguese tographers drew recalls a time when the words “wondrous” exchanged for slaves up and down the African coast, but and “awful” were synonymous: on the ancient maps, the eventually lost even this advantage to European and other places labeled terra incognita were never blank, but popu- African weavers. Gradually, the authority of the Kongo state lated residences of the imagination. The explorers who plot- frittered away. In 1615, the Portuguese colonized the shell- ted the continent’s profile and sounded its coastlines producing island of Luanda, which for two centuries had expected to be astonished, and were. Imagine what a giraffe, been the source of the Kongo’s nzimbu money, and also or an elephant, or a manatee looked like to the first Euro- began importing shells from Brazil and India. In four years, peans to see them. Imagine Bartolomeu Dias rounding the the value of the Kongo currency plummeted by 80 percent. Cape of Good Hope and seeing the African coast stretch Sensing the Kongo’s weakness, Queen Nzinga of Angola northward—after traveling 5,000 miles in a ship no larger annexed the Kongo’s southern provinces and siphoned off than the average American house. Imagine feeling the

38 Civil Rights Journal / Winter 2002 warmth of the Indian Ocean, and seeing the dhows of uns aos outros se vendem Mombassa and Zanzibar that even then had sailed as far as & ha muitos merdadores India. But behind the explorers came the missionaries and que nisso somente entemdem the slavers (who were often the same person), and with no & hos enganam & prendem more than the usual dose of arrogance and greed they shriv- & trazem aos tratadores. eled the continent to the size of their hearts. “Africans being the most lascivious of all human beings,” wrote one slaver, (They sell each other “may it not be imagined that the cries they let forth at being there are many merchants torn from their wives, proceed from the dread that they will whose specialty it is never have the opportunity of indulging their passions in to trick and capture them the country to which they are embarking?” and sell them to the slavers.) In 1508, when a young black woman arrived in Scotland (off a wrecked pirate ship, possibly), King James IV held and Thus the question of who could enslave whom, and under won a royal joust in honor of “that ladye with the mekle lip- what conditions, which had been a topic of lively debate in pis.” A century later, Shakespeare and Rembrandt gave to the early years of the European discovery and conquest of the their portraits of Africans an intelligence and dignity that New World, received a decisive answer. The die was cast: even later centuries would scarcely credit, and dozens of lesser today—some 300 years after the Battle of Mbwila—thriller painters of the Italian and Northern Renaissance sprinkled novels and college bars still borrow the Kongo’s name for its their canvases with images of blacks that were no more or less suggestion of the primitive. The old kingdom, its territory condescending than their image of Europeans. In the 15th neatly bisected by the border between present-day Angola and 16th centuries, the pope and the secular kings of Europe and Zaire, continues to exert an atavistic attraction, like an welcomed African potentates to their courts, and treated out-of-the-way theater in a once-fashionable neighborhood, them with all the deference due royalty. But slavery needed a where, on sporadic afternoons, the lights darken and the myth to sustain and justify it. So in the bedrooms of the silent films still run. Brazilian sugar estates, where oriental drapery wilted from In the decades and centuries that followed, neither war balustrades in the humid air, and from the lecterns of the nor peace would succeed in reuniting the kingdom. And yet, cathedrals that the missionaries built, stories took root of the however degraded, the idea of resurrecting the Kongo never African as a tom-tom player and a devil-worshiper, an unciv- entirely died. In the 1950s, F. Clyde Egerton, a visitor to ilized savage, a sex-fiend and cheerful submissive. “The peo- Mbanza Kongo, reported of the former capital: ple of Guinea,” wrote one German scientist in the 18th cen- tury, “are more insensible than others towards pain and It has completely lost any romantic character it ever had, and natural evils, as well as towards injurious and unjust treat- is now no more than a straggling village. The walled cities ment. In short, there are none so well adapted to be the slaves have disappeared and the eleven churches with them. What is of others, and who therefore have been armed with so much left of the Cathedral is unimposing, just the chancel arch and passive obedience.” And Thomas Carlyle proclaimed, dizzily, some low remains of chocolate-coloured walls. It is sur- “Before the West Indies could grow a pumpkin for any Negro, rounded by the unkempt grass which is everywhere to be seen how much European heroism had to spend itself in obscure in the dry season; and the graves of the early kings of the battle; to sink, in mortal agony, before the jungles, the putres- Congo, rough, obelisk-like monuments in an untidy church- cences and waste savageries could become arable, and the yard, look unkempt and neglected also. Devils in some measure chained up!” In this ideological transformation the Kingdom of the Egerton wrote that he had spoken to an “old man of Kongo played a pivotal role. For it was with the discovery and nearly seventy who sported a magnificent white mustache exploitation of the Kongo, coming hard upon the establish- and who called himself Dom Pedro VII, the last king of ment of the Atlantic sugar plantation, that the European Congo, but he was rumoured to be an impostor.” He lived in demand for slaves was rekindled, and the identification of an unpretentious house near the ruins of the cathedral. slavery and race made explicit. In the century prior to 1482, Around the walls of his house hung copies of paintings of the number of black slaves taken annually from Africa num- Portuguese royalty. Egerton was shown the “regalia,” which bered, at most, in the hundreds. Most worked in Mediter- he described as a “royal robe trimmed with white fur, which ranean Europe as household servants, hospital orderlies, looked more like rabbit than ermine, a silver crown, a sceptre, garbage collectors, or in similar menial positions. Color at and miscellaneous utensils, none of which looked more than that time was no bar to servitude: Greeks, Turks, Russians, a hundred years old.” The king, who died in 1955, was given Slavs, and Cretans were also enslaved, and most of the very a small subsidy by the Portuguese authorities, which he sup- first slaves shipped to Brazil were white. But after 1482, the plemented by growing a little coffee and rice. C R number of slaves coming from Africa rose dramatically. By 1550, a Portuguese ditty could sum up Europe’s changing DAVID LOPES IS A FREELANCE WRITER LIVING IN LAWRENCE, perception of Africa, and of the Kongo in particular: KANSAS.

Winter 2002 / Civil Rights Journal 39 Disenfranchisement n Election Day 2000 in Florida, in the midst of all the dimpled ballots and hanging chads, Thomas Johnson stayed home. Johnson, the African The American director of a Christian residential pro- Ogram for ex-offenders wanted to vote for George W. Bush, but Modern-Day was prevented by Florida law from doing so. In 1992, John- son had been convicted of selling cocaine and carrying a firearm without a license in New York. After serving his sen- Voting Rights tence and moving to Florida in 1996, Johnson found that as an ex-felon he was barred from the voting booth. He was hardly alone in this situation, as at least 200,000 others in Challenge Florida who had theoretically “paid their debt to society” by Marc Mauer were also frozen out of the electoral process. Nationwide, four million Americans either serving a felony sentence or who had previously been convicted of a felony were also forced to has permanently lost his voting rights unless sit out the election.1 he receives a gubernatorial pardon. The laws that kept these citizens home can be traced back While the issue of disenfranchise- to the founding of the nation. In retrospect it is not terribly ment would raise questions about surprising that felons were excluded from political participa- democratic inclusion at any point tion since the majority of the population was excluded at the in history, the dramatic escala- time. With the founding “fathers” only having granted the tion of the criminal justice vote to wealthy white male property holders, the excluded system in the past 30 years population also incorporated women, African Americans, has swelled the number of illiterates, and the landless. Thus, political participation in persons subject to these the new democracy was extended to just 120,000 of the two provisions to unprece- million free Americans (not counting the more than one mil- dented levels. Currently, lion slaves and indentured servants) at the time, about 6 per- 2 percent of the adult popula- cent of the population.2 Except for convicted felons, of tion cannot vote as a result of a current course, all these other exclusions have been removed over a or previous felony conviction. Given the vast racial dispari- period of 200 years, and we now look back on those barriers ties in the criminal justice system it is hardly surprising, but with a great deal of national embarrassment. shocking nonetheless, to find that an estimated 13 percent of The exclusion of felons from the body politic derived from African American males are now disenfranchised. the concept of “civil death” that had its origins in medieval The coalescence of disenfranchisement laws and racial Europe. Such a designation meant that a lawbreaker had no exclusion began to be cemented in the post-Reconstruction legal status, and also had dishonor and incapacity imposed era following the Civil War. Prior to that not only were blacks on his or her descendants. The concept was brought to North in the South obviously unable to vote, but only six Northern America by the English in the Colonial period. After the Rev- states permitted their participation. But the newly enfran- olution, some of the English common law heritage was chised black population in the South was quickly met with rejected, but the voting disqualifications were maintained by resistance from the white establishment. In many states, this many states. Two hundred years later, every state but Maine took the form of the poll tax and literacy requirements being and Vermont (which allow prisoners to vote) has a set of laws adopted, along with a number of states tailoring their existing that restricts the voting rights of felons and former felons. disenfranchisement policies with the specific intent of Forty-eight states and the District of Columbia do not permit excluding black voters. One scholar describes this as a meas- prison inmates to vote, 32 states disenfranchise felons on ure designed to provide “insurance if courts struck down parole, and 28 felons on probation. In addition, in 13 states more blatantly unconstitutional clauses.”3 a felony conviction can result in disenfranchisement, gener- The disenfranchisement laws adopted in a number of ally for life, even after an offender has completed his or her southern states were not at all subtle, often requiring the loss sentence. Thus, for example, an 18-year-old convicted of a of voting rights only for those offenses believed to be com- one-time drug sale in Virginia who successfully completes a mitted primarily by blacks. In Mississippi, for example, the court-ordered treatment program and is never arrested again 1890 constitutional convention called for disenfranchise-

40 Civil Rights Journal / Winter 2002 voting for decades, it did not disenfranchise rapists and mur- derers until 1968.9 While one might debate whether the intended effect of dis- enfranchisement policies today is to reduce minority voting of Felons: power, it is inescapable that this impact could have been pre- dicted as a logical consequence of the nation’s wars on crime and drugs. The five-fold increase in the nation’s inmate pop- ulation since the early 1970s brought about both an absolute increase in numbers as well as a disproportionately greater impact on persons of color. Much of this was due to the inception of the modern-day war on drugs in the 1980s, whereby the number of persons incarcerated for a drug offense rose from 45,000 in 1980 to nearly a half million today. Blacks and Latinos now constitute four of every five drug offenders in state prison. A considerable body of research documents that these figures are not necessarily a result of greater drug use in minority communities but rather drug policies that have employed a law enforce- ment approach in communities of color and a treatment orientation in white and suburban neighborhoods.10 And the greater the number of minority offenders in the system, the greater the rate of disenfranchisement. At modest rates of disenfranchisement such a policy is one that is clearly of concern to an individual felon but is unlikely to affect electoral outcomes in any significant num- ber of cases. But at the historic levels that have been achieved

The exclusion of felons from the body politic derives from the concept of “civil death” that had its origins in medieval Europe. © James Endicott/Stock Illustration Source

ment for such crimes as burglary, theft, arson, and obtaining in recent decades the issue is no longer one of merely aca- money under false pretenses, but not for robbery or murder.4 demic interest but is likely to be having a profound impact on In the words of a Mississippi Supreme Court decision several actual electoral results. years later, blacks engaged in crime were “given rather to Sociologists Christopher Uggen and Jeff Manza have pro- furtive offenses than to the robust crimes of the whites.”5 duced a sophisticated model for estimating the number of Other southern states—Alabama, Louisiana, South Car- disenfranchised voters in each state and the effect of their olina, and Virginia—followed this pattern as well in their tar- absence on elections for national office.11 Uggen and Manza geting of “furtive offenses.” The intent of such policy was assume that felons and former felons would vote at lower made clear by the author of the Alabama provision, who rates than the (already low) national rate but that they “estimated the crime of wife-beating alone would disqualify would be more likely to vote Democratic, given that they sixty percent of the Negroes.”6 Alabama’s constitution also are disproportionately minorities (an estimated 38 percent barred voting for anyone convicted of crimes of “moral turpi- African American) and poor and working-class whites. Even tude,” including a variety of misdemeanors. Here, too, the with a projected lower turnout they conclude that disen- intent and effect were quite obvious, resulting in 10 times as franchisement policies have affected the outcome of seven many blacks as whites being disenfranchised, many for non- U.S. Senate races from 1970 to 1998, generally in states with prison offenses.7 close elections and a substantial number of disenfranchised These policies were not of fleeting duration. Alabama’s dis- voters. In each case, the Democratic candidate would have enfranchisement law for offenses of “moral turpitude” was in won rather than the Republican victor. Projecting the place until 1985 before finally being struck down by the impact of these races over time leads them to conclude that Supreme Court due to its discriminatory intent and impact.8 disenfranchisement prevented Democratic control of the And while Mississippi barred many petty offenders from Senate from 1986 to 2000.

Winter 2002 / Civil Rights Journal 41 Disenfranchisement policies are in sharp conflict with the goal of promoting public safety.

Supporters of felon disenfranchisement contend that might be some validity to this argument for felons convicted regardless of their outcome these policies are important for of electoral fraud, it is hard to imagine why a car thief or drug several reasons. One of the significant court decisions, an seller would have an interest in, or knowledge of, committing Alabama case decided in 1884, found that denying the vote such an offense. Since more than 99 percent of felons have to ex-convicts was necessary to preserve the “purity of the not been convicted of electoral offenses, this seems to be a ballot box” from the “invasion of corruption” and that “this rather overbroad concern. And when electoral fraud occurs, it class should be denied a right, the exercise of which might rarely manifests itself in the presence of a voter in the voting sometimes hazard the welfare of communities.”12 booth, but rather through improper counting of ballots or In more recent times, this rationale has been presented outright bribery. One does not need to be a registered voter to within the context of the “law and order” political climate, commit these offenses. Ironically, in some states electoral being expressed as a fear that convicted felons would pre- offenses are only classified as misdemeanors and therefore sumably cast their vote in such a way as to weaken law persons convicted of these crimes are not subject to disen- enforcement institutions. In a significant New York case in franchisement. 1967, Judge Friendly wrote that “it can scarcely be deemed Disenfranchisement is sometimes premised on being a unreasonable for a state to decide that perpetrators of serious legitimate aspect of punishment for a criminal offense, but crimes shall not take part in electing the legislators who make this is curious in several respects. While all other aspects of the laws, the executives who enforce these, the prosecutors sentencing are expected to be proportional to the offense who must try them for further violations, or the judges who involved and are imposed by a judge on an individual basis, are to consider their cases.”13 Or in the words of one modern- disenfranchisement is an across-the-board penalty imposed day proponent, “criminal disenfranchisement allows citizens on mass murderers and larcenists alike. Further, criminal con- to decide law enforcement issues without the dilution of vot- victions do not otherwise result in the loss of basic rights. ers who are deemed . . . to be less trustworthy.”14 Convicted felons maintain the right to divorce, own prop- In other words, ex-felons would presumably vote for poli- erty, or file lawsuits. The only restrictions generally placed on cies that help criminals and thwart the legitimate interests of these rights are ones that relate to security concerns with a otherwise law-abiding members of the community. If so, this prison. Thus, an inmate may subscribe to Time magazine but might set up a conflict between the principle of democratic not to a publication that describes the production of explo- inclusion and the need for public safety. But how real a threat sive devices. Conflating legitimate punishment objectives is this? Suppose, for example, a group of burglars want to with the denial of constitutional rights sets a risky precedent. reduce the criminal penalties for burglary. First, they would Proponents of disenfranchisement suggest that even in have to field a candidate (either one of their own or someone the most extreme cases the loss of the right to vote is never else who is “pro-burglar”) to run for state office. They would truly for a lifetime since all states maintain a process whereby then have to mount a rather effective campaign in this era of ex-felons can seek restoration of their rights from the gover- “get tough” politics in order to secure 51 percent of the vote. nor. While this is true in theory, in practice it is often illusory. Once elected, the new office holder would have to convince A number of states impose a waiting period of 5 or 10 years a majority of the state legislature and the governor to reduce before an ex-felon can even petition to have his or her rights penalties for burglary. This hardly seems like a substantial restored. The process of seeking restoration is also often cum- threat to the safety of the community. bersome and expensive. In Alabama, for example, ex-felons Perhaps a less fanciful scenario relates to drug policy. As are required to seek a pardon from the Board of Pardons and the war on drugs has swelled prison populations and taken a Paroles, but also to provide a DNA sample to the state.15 Yet disproportionate toll on minority communities, considerable only four counties are set up to administer DNA testing, so an opposition has developed to mandatory sentencing and ex-felon might have to travel hundreds of miles to do so. In related policies. In some neighborhoods substantial numbers Mississippi, ex-felons must either secure an executive order of people are returning home after serving five-year prison from the governor or convince a state legislator to introduce terms for low-level drug offenses. Arguably, their voices and a bill on his or her behalf, obtain a two-thirds majority in the votes, along with those of their neighbors, might lead to the legislature, and have it signed by the governor.16 election of candidates who support scaling back harsh drug Data on the number of former felons who have their laws. Is there a policy rationale that justifies excluding per- rights restored are difficult to come by, but in one recent two- sons who have experienced the impact of such laws from year period a total of 404 persons in Virginia regained their deliberating about their wisdom? voting rights at a time when there were more than 200,000 The prospect of electoral fraud is also sometimes raised as ex-felons in the state.17 The state of Florida had previously a legitimate concern in regard to felon voting. While there instituted a procedure whereby the Department of Correc-

42 Civil Rights Journal / Winter 2002 tions was required to aid released inmates in regaining their generated over electoral problems and reforms, the nation is voting rights, and as many as 15,000 former felons a year likely to see a renewed focus on this area of public policy in were able to do so in the mid-1980s. But new rules imposed the coming years. by the state in the early 1990s greatly restrict the number of The irony of the combined impact of American disenfran- eligible inmates, with the result that fewer than 1,000 persons chisement policies along with the massive expansion of the a year have their rights restored. Those who are not eligible prison system is that a half century after the beginnings of the still have the option of applying for executive clemency, but civil rights movement increasing numbers of African Ameri- this process involves completing a 12-page questionnaire that cans and others are losing their voting rights each day. As the asks about such items as the details of a spouse’s previous Western democracy with the lowest rate of voter participation, marriage, existing disabilities, amount of stocks and bonds it is long past time for the United States to consider means of owned, and a description of “your relationship with your bringing more Americans into the electoral process and end family.”18 the practice of excluding large groups of citizens. C R While the rationale in favor of disenfranchisement is hardly compelling, there are two primary arguments which MARC MAUER IS THE ASSISTANT DIRECTOR OF THE SENTENCING suggest that these laws are both counterproductive and out of PROJECT AND AUTHOR OF RACE TO INCARCERATE. HE IS CURRENTLY line with evolving international norms. First, disenfranchise- EDITING A COLLECTION OF ESSAYS ON THE SOCIAL COST OF IMPRIS- ment policies are in sharp conflict with the goal of promoting ONMENT, TO BE PUBLISHED BY THE NEW PRESS IN 2002. public safety. Whether an offender has been sentenced to prison, probation, or some other status, a primary goal of the criminal justice system and the community should be to References reduce the likelihood that the person will reoffend. One 1 Jamie Fellner and Marc Mauer, “Losing the Vote: The Impact of means by which this can be accomplished is through instill- Felony Disenfranchisement Laws in the United States,” Human ing within the offender a sense of obligation and responsibil- Rights Watch and The Sentencing Project, October 1998. ity to the community. Those persons who feel some connec- 2 Alec C. Ewald, “Civil Death: The Ideological Paradox of Criminal tion to their fellow citizens are less likely to victimize others. Disenfranchisement Laws in the United States,” Master of Arts As former Supreme Court Justice Thurgood Marshall stated, Thesis, University of North Carolina, 2000, p. 1. “[Ex-offenders] . . . are as much affected by the actions of gov- 3 J. Morgan Kousser, cited in Andrew L. Shapiro, “Challenging ernment as any other citizen, and have as much of a right to Criminal Disenfranchisement Under the Voting Rights Act: A participate in governmental decision-making. Furthermore, New Strategy,” Yale Law Journal, vol. 103, p. 538. the denial of a right to vote to such persons is hindrance to 4 Ratliff v. Beale, 74 Miss. 247, 265–66 (1896). the efforts of society to rehabilitate former felons and convert 5 Ratliff, 266–67; see also Shapiro, p. 541. them into law-abiding and productive citizens.”19 6 Shapiro, p. 541. American disenfranchisement policies are also quite 7 Ewald, p. 91. extreme by the standards of other industrialized nations. In 8 Hunter v. Underwood, 471 U.S. 222 (1985). no other democracy are convicted offenders who have com- 9 Ewald, p. 92. pleted their sentences disenfranchised for life, as is the case in 10 See, e.g., Michael Tonry, Malign Neglect (New York: Oxford Uni- 20 more than a dozen states. Of the handful of nations that versity Press, 1995). restrict voting rights for a period of time after the conclusion 11 Christopher Uggen and Jeff Manza, “The Political Consequences of a prison term, those such as Finland and New Zealand of Felon Disenfranchisement Laws in the United States,” paper only do so for several years and only for electoral offenses or presented at the annual meetings of the American Sociological corruption. A number of nations, including ones as diverse as Association, Washington, DC, Aug. 16, 2000. the Czech Republic, Denmark, Israel, Japan, and South Africa, 12 Washington v. State, 75 Ala. 582, 585 (1884). permit inmates to vote as well. 13 Green v. Bd. of Elections, 380 F.2d 445 (2d Cir. 1967) as cited in In recent years, the increased attention devoted to this Ewald, p. 51. issue has resulted in a reconsideration of some of the more 14 Todd F. Gaziano, Testimony before the House Judiciary Com- extreme policies within the states. In 2000, the governor of mittee Subcommittee on the Constitution Regarding HR 906, Delaware signed into law a measure repealing the state’s life- Oct. 21, 1999, p. 2. time ban on ex-felon voting (imposing a five-year waiting 15 Patricia Allard and Marc Mauer, “Regaining the Vote: An Assess- period in its place), and the following year New Mexico did ment of Activity Relating to Felon Disenfranchisement Laws,” away with its lifetime ban as well. Connecticut went further, The Sentencing Project, January 2000. extending voting privileges to felons currently on probation 16 Fellner and Mauer, p. 6. as well. And in August 2001, the bipartisan National Com- 17 Ibid., pp. 5–6. mission on Federal Election Reform co-chaired by former 18 Florida Parole Commission, “Clemency Questionnaire.” Presidents Ford and Carter recommended that states allow for 19 Richardson v. Ramirez, 418 U.S. at 78 (Marshall J. dissenting, the restoration of voting rights for felons who have com- citations omitted). pleted their sentence. In the wake of the national discussion 20 Fellner and Mauer, p. 18.

Winter 2002 / Civil Rights Journal 43 People with Disabilities:

ifty-six million Americans have some type of disabil- ity. Two and a half million people use wheelchairs, 110,000 are blind and have no light perception, 1.7 The Sleeping million are legally blind, and 11 million people use Fsign language as their primary means of communication. These are visible disabilities. However, it is important to know that most disabilities are Giant of “invisible.” Less visible are disabilities caused by epilepsy, dia- betes, hypertension, heart disease, traumatic brain injury, mental retardation, AIDS, some forms of multiple sclerosis, American psychiatric disabilities, and cancer.

Voting Registration and People with Disabilities Politics For a number of reasons, people who are disabled vote at a by Jim Dickson 10–20 percent lower rate that nondisabled voters. In fact, if people with disabilities voted at the same rate as those with- polling places. A Rutgers University poll reports that 27 per- out disabilities, 4.6 million more votes would have been cast cent of nonvoting people with disabilities expect to have in the last presidential election.1 access problems at the polls. A General Accounting Office Poor voter turnout by Americans with disabilities is partly (GAO) report states that 84 percent of all polling places have a result of low voter registration rates. There are approxi- some sort of barrier to voters with mobility disabilities.7 Gary mately 27 million people with disabilities who did not vote Bartlett, the executive secretary-director of the State Board of in the 2000 presidential election; more than 10 million are Elections in North Carolina, recently surveyed the polling not even registered to vote.2 In fact, people with disabilities places in one of his counties. He found that 20 percent of that register to vote at a rate that is 16 percent lower than able- county’s polling places had been classified incorrectly as bodied Americans.3 accessible. Rhode Island is the only state in the country to The National Voter Registration Act (NVRA), known as the make all its polling places wheelchair accessible. Motor Voter Law, requires state agencies that provide services Over the past few years, the disability community and to persons with disabilities to offer voter registration to their election officials have been meeting to address these ballot clients “with each application for such services or assistance, access problems. The National Task Force on Election Acces- and with each recertification, renewal or change of address sibility published in 2000 a polling place access guide that is form.”4 A National Organization on Disability/Louis Harris poll available on the American Association of People with Dis- reports that only 58 percent of people with disabilities have abilities (AAPD) Web site, www.aapd-dc.org. This guide has been offered the opportunity to register to vote by their service been mailed by the Federal Election Commission to every providers, indicating widespread violation of the NVRA.5 election official in the country. Agencies required to offer this service include Paratransit On the other hand, some states are making changes because providers. Paratransit is a public transportation system that the courts are forcing them to do so. On February 8, 2000, offers curb-to-curb or door-to-door transportation for people Judge Howard G. Munson of the Northern District of New York with disabilities. Approximately one million people with dis- granted an injunction by that state’s attorney general requiring abilities nationwide receive Paratransit rides, and at least that Schoharie and Delaware counties modify their polling 400,000 of these individuals are not registered to vote. places to comply with the New York State Election Law and the Recently, a district court in Pennsylvania ruled that the NVRA Americans with Disabilities Act prior to New York’s presidential requires state-funded Paratransit agencies to provide voter primaries. The lengthy and detailed decision rejected each of registration opportunities to their clients.6 Plaintiffs in the the counties’ arguments, including that the attorney general’s case requested that the court make a declaration that the state demands were unnecessary and “overly bureaucratic.”8 Law- violated the NVRA by failing to designate its transportation suits have also been filed against Philadelphia and Jacksonville, authorities as voter registration agencies. Florida. In August 2002, a settlement was reached in a suit against the District of Columbia, requiring accessibility for 9 A Question of Access blind and mobility-impaired voters. In addition to the problem of physical access to the One of the reasons people with disabilities, especially those in polling place, millions of disabled Americans are denied the wheelchairs, do not vote is because of difficulty accessing right to cast a secret ballot. This includes voters who are blind

44 Civil Rights Journal / Winter 2002 AFP PHOTO/ Manny CENETA © AFP/CORBIS

The Reverend Jesse Jackson (L) addresses a group of disabled persons during an October 3, 2000, rally on Capitol Hill, to support Americans with disabilities. The rally sponsored by Rolling Freedom Express is aimed at affirming the constitutionality of the Americans with Disabilities Act. and low vision, as well as those who have limited hand ability community establishes itself as a powerful voting bloc, mobility. However, technology does exist that enables these Americans will be all the more ready to accept and encourage voters to cast a secret ballot on a “talking voting system.” all that people with disabilities have to offer the nation. C R The voter hears the ballot and follows the prompts in the same manner as when a customer calls his bank or utility JIM DICKSON IS THE AAPD VICE PRESIDENT OF GOVERNMENTAL company, only in this case the computer is reading the AFFAIRS AND OVERSEES THE DISABILITY VOTE PROJECT. names of candidates for office. Maryland and Georgia require one such accessible voting machine in every polling place, References and the city of Houston has already used such a system in 1 The Disability Vote in the November 2000 Election, Harris Interactive two elections. There are five manufacturers of accessible vot- Poll, Mar. 6, 2001. ing equipment. These are listed on the AAPD Web site. 2 U.S. Census Bureau, Americans with Disabilities: 1997 Household Closing the voter registration gap and making polling places Economic Studies, February 2001; Harris Interactive, 2001. accessible are just the start to increasing the voter turnout of 3 Harris Interactive, 2001. people with disabilities. These two agendas, while important, 4 42 U.S.C. § 1973gg-5(a)(6)(1994). must be supplemented with nonpartisan voter education and 5 “Statistics on Voter Registration of People with Disabilities,” get-out-the-vote drives. Disability service providers must pro- excerpt from National Organization on Disabilities/Harris 2000 mote the importance of voting to all of their clients. Local Survey of Americans with Disabilities, accessed at www.nod. coalitions and disability advocates, assisted by national and org/cont/dsp_cont_loc_hme.cfm?locationld=5$locationNm= Stats%20%26%20Surveys. state disability organizations, can help achieve this goal 6 Association of Community Organizations for Reform Now v. through multiple mailings and phone banking. Ridge, 2000 U.S. Dist. LEXIS 310 (Jan. 14, 2000). To increase the discussion of voting among disability serv- 7 U.S. General Accounting Office, Voters with Disabilities: Access to ice providers, the National Organization on Disability and Polling Places and Alternative Methods, GAO-02-107, October 2001. the League of Women Voters have published a nonpartisan, 8 New York v. County of Delaware, 82 F. Supp. 2d 12 (N.D.N.Y.). See get-out-the-disabled-vote manual. This comprehensive man- also New York v. County of Delaware, 2000 U.S. Dist. LEXIS 12595 ual, also available on the AAPD Web site, contains detailed (Aug. 16, 2000) (the court found that not all polling places were information and instructions for disability service providers. accessible and ordered defendants to take measures to comply with Exercising the right to vote as full and equal participants in the earlier order). the democratic process is of great importance to all citizens 9 “AAPD Plaintiff in Landmark Lawsuit Against the District of Columbia that has Just Been Settled,” American Association of with disabilities. The American Association of People with Dis- People with Disabilities News, accessed at www.aapd-dc.org/ abilities’ Disability Vote Project seeks to showcase the impor- docs.land marksettledcvotemach.html. The American Associa- tance of voting within the disability community. As the dis- tion of People with Disabilities et al. v. District of Columbia, No. 01-1884 (RMU). Winter 2002 / Civil Rights Journal 45 Managing theDiversity

Diversity Today how productive it is in a highly competitive global econ- omy—depends on whether it has people who are comfort- t’s every CEO’s worst nightmare. He’s packing his brief- able working across lines of race, class, religion, and back- case for the evening when he gets a panicky call from ground,” say former Ivy League university presidents Derek his public relations firm. There’s a story set to appear in Bok and William Bowen. “Diversity is a business imperative tomorrow’s Wall Street Journal: A class action suit is going because it affects competitiveness.” Ito be filed against the company alleging pervasive racial dis- This article takes that proposition as its theme. In a nation crimination. The lawyer spearheading the case has won that is becoming increasingly multiethnic, and in a world multi-million dollar lawsuits against several Fortune 500 that is ever more interconnected, diversity has become an firms. Worse, there are rumors that a major civil rights figure inescapable business reality. Managed well, diversity can be may be launching a boycott against the company, damaging a source of competitive advantage; managed poorly (or sim- its reputation in ways that will take years to undo. ply left to its own devices), a source of frustration, resent- Then a call comes in from the VP in finance: The com- ment, and yes, even disaster. pany’s shares in early evening off-hours trading have Business can’t be given the task of reforming society or of dropped by three points, and are falling fast. Oh, and there’s righting the nation’s historical wrongs. That is a task for probably nothing to this—the VP’s voice drops to a whis- everyone—individually and collectively. But business can per—but has he heard anything about an incriminating make sure that the doors of opportunity are held open to all. audio tape? Something about racist language at a recent If there is one consistent message to be gleaned from the executive staff meeting? existing research and from the experience of countless cor- Still consulting with finance, the CEO is interrupted by porations, it is that responding proactively to diversity is not the persistent beep of call waiting. It’s the New York Times. only the right thing to do, it’s also the smartest. As Jocelyn The questions come fast—faster than he can answer them. Roberts, a human resources manager for a DC-based tech- Any response to the lawsuit? Was he aware of the racial ten- nology company, noted, “We view diversity as something sion at his Decatur, Illinois, plant? How many senior VPs in more than a moral imperative or a business necessity. We see the firm are African American? Just the one? Out of how it as a business opportunity.” many? Nothing quite this dramatic, of course, has ever occurred The Demographic Revolution to any real company. Even when disaster strikes, it’s usually spread out over a period of weeks or months. Still, if the The challenge of the 20th century, the great African Ameri- timeline has been condensed for dramatic effect, the inci- can scholar W. E. B. DuBois wrote prophetically in 1903, dents it describes are real enough, as any reader of the busi- would be the problem of race. For American business leaders, ness pages will recognize. The $132 million dollar settlement the challenge of the 21st century may also prove to be race— at Shoney’s is dwarfed by the $176 million settlement at Tex- as well as ethnicity, gender, age, religion, disability status, aco, which in turn is trumped by the $192 million settle- and sexual orientation, to list just a few of the many ways ment at Coca Cola. Small wonder that diversity and anti-sex- that Americans now define and distinguish themselves. ual harassment training have mushroomed into a billion To understand why race—and, increasingly, these other dollar business, or that company chieftains woo civil rights dimensions of personal identity—continue to be so salient, leaders today as assiduously as they romance Congress. consider the demographic changes now underway. In 1900, As companies scramble to avoid lawsuits, however, fully 87 percent of people living in the United States were they’re discovering something surprising: Diversity, it turns white; most of those who weren’t white were African Amer- out, can be good for them. “How well an enterprise works— icans living in the Deep South. By 1950, those percentages

46 Civil Rights Journal / Winter 2002 Revolution Best Practices for 21st Century Business by David Aronson Artville

hadn’t changed much, although large numbers of blacks composition. Yet it is a revolution that almost never makes were migrating north in search of better opportunities in the the headlines. Like the frog that doesn’t notice that the water industrializing cities. Today, however, less than 75 percent of in the pot is heating up, we rarely grapple with the true sig- Americans are non-Hispanic whites. There are just as many nificance of all the incremental changes taking place. The Hispanics as blacks, and growing populations of Asian and increasing number of fashionable Asian restaurants in our Middle Eastern Americans. By 2050, there will be nearly cities, the proliferation of Latino entertainers on our TVs; twice as many Hispanics as African Americans, and—in these are mere hints of something much deeper and vaster absolute numbers—more Asian Americans than there are happening below the surface. The United States, as the African Americans today. By the middle of this century, non- writer Farai Chideya has argued, is making the transition Hispanic whites will no longer be a majority of the popula- from being a majority-white nation concerned with black tion. In other words, we will all be minorities. and white issues, to a majority-minority nation insuffi- No nation in history has experienced such a swift— ciently aware of—and insufficiently prepared for—its emerg- indeed, such a revolutionary—change in its demographic ing multicultural identity.

Winter 2002 / Civil Rights Journal 47 Figure 1. U.S. population by race and ethnic group, 2000, 2025, and 2050

Asian 9% Asian 4% American Indian 1% Asian 6% American American Indian 1% Indian 1%

Black Black Black 12% 13% 13% Hispanic Hispanic 12% 18% Hispanic 24%

White White White non-Hispanic non-Hispanic non-Hispanic 71 % 62% 53%

2000 2025 2050

SOURCE: U.S. Census Bureau, Projections of Resident Population, various years. Based on 1990 Census data with a projection of moderate immigration growth.

Businesses, of course, have a particular interest in deal- says. “If you measure a business by how it grows, you have ing with the practical realities of this change—if they to focus on people of color and the elderly. They are the don’t want to end up like the proverbial frog. Indeed, the nation’s fastest growing demographics.” changes are even more dramatic at the business level. For Maria Johnson, vice president, Office of Diversity, Because immigration skews a population young, the labor Health, and Worklife Initiative, at Fannie Mae, diversity is force of today and tomorrow will be even more diverse also a bottom-line issue. Fannie Mae specializes in the sec- than the population at large. ondary mortgage market; the company has an interest in In addition, race and ethnicity are now just part of the seeing as many people own homes as possible. Fannie “diversity equation.” The civil rights movement gave rise Mae’s analyses suggest that the housing saturation gap— to a host of other groups seeking recognition, further the difference between the number of people who own complicating the picture. Women, religious minorities, their own homes and the number who could—is much the disabled, gays and lesbians—these are just a few of the higher for various minority groups than it is for whites. groups that have given such a kaleidoscopic quality to “We estimate that at any moment, about 75 percent of today’s political and social landscape. Today, only 29 per- whites could own their homes, and about 70 percent do. cent of families composed of a married couple with chil- The saturation gap is only about 5 percentage points. For dren live in a traditional two-parent household with a some minority groups, such as Hispanics, the gap is more stay-at-home mom and a working dad. Especially when like 20 points, so every dollar invested [in encouraging Americans not living in such an arrangement are taken them to buy homes] yields higher returns.” into account, it is clear the nation is a long way from the Much of the early impetus behind the diversity move- era of Father Knows Best. ment in corporate America came from the Hudson Insti- Ted Childs, vice president for workforce diversity at Inter- tute’s 1980 report, Workforce 2000. That report made head- national Business Machines (IBM), points out another rea- lines by predicting that by the year 2000, only 15 percent son diversity is key: There are more than 12 million women- of entrants to the workforce would be white males. As it and minority-owned businesses in the United States, trans- turns out, that statistic wasn’t quite accurate, or to put it acting more than $1.4 trillion in business each year. The per- more charitably, wasn’t quite understood accurately. The centage of women- and minority-owned firms has more 15 percent referred to net new entrants, a figure that rep- than doubled in the past decade. The number of Hispanic- resents the number of those who are entering minus those owned businesses alone jumped from 400,000 to 2 million who are retiring for each group, expressed as a percentage between 1986 and 1996. And Asian Americans have of the total.1 There has been something of a backlash as a founded more than 600,000 new businesses over the past result of this misunderstanding, with several analysts con- two decades. Today, Childs points out, there are more than tending that the significance of diversity has been exag- 83 million people of color in the United States, who, com- gerated. It is important therefore, to speak clearly and bined, have an income or spending power equivalent to the accurately. Between 1998 and 2008, about 42 million peo- GNP of such mid-size nations as France, the U.K., or Spain. ple will have entered the workforce. Forty-one percent will “White men in America only have so much money,” Childs be ethnic/racial minorities. Around 29 percent will be

48 Civil Rights Journal / Winter 2002 white women. And slightly more than that—roughly 30 Figure 2. Entrants to the labor force, 1998 to 2008 percent—will be white men (see figure 2). If this is far from Hispanic men Hispanic women the 15 percent cited in the headlines, it is still an extraor- 8.2% 8.0% dinary change from say, 1940, when white men consti- Asian and tuted 69 percent of the workforce. American The changes are even more striking considering the other Indian men Black 4.3% factors in effect. Fifty years ago, whites and blacks may have women both worked in an office building, but chances are that the 9.0% Asian and white worked as, say, a lawyer, and the black as a janitor. Black men American Today’s workplace, while still imperfect, is far more inte- 7.5% Indian grated. Indeed, sociologists tell us that work remains the one women relatively integrated setting left: There is, they say, a worry- 4.5% ing trend toward resegregation in our neighborhoods, schools, civic associations, and so on. In addition, the nature of work is changing. The factory White women White men 29.9% worker stamping rivets on an assembly line circa 1930 may 28.6% have worked side-by-side with the fellow cranking the boiler, but they didn’t need to work together in the way that, say, a Web designer has to work with the marketing crew and simultaneously coordinate with the technical experts. It’s difficult to quantify the extent of this change, but the new, post-industrial economy clearly puts a premium on team- NOTE: Racial categories exclude Hispanics who may be of any race. based, knowledge-driven production. SOURCE: Fullerton, Monthly Labor Review (November 1999). Finally, globalization is affecting us all, propelling immi- grants to new lands, knitting together ever-richer informa- tion networks, and releasing capital across borders, like water Other negative outcomes, such as turnover and absen- seeking level. These processes will fundamentally alter the teeism, can be measured and “priced out,” and intermediate nature of the corporation itself. As management guru Peter values can be derived from workplace satisfaction surveys. A Drucker has said: “It is still generally assumed that the series of workplace surveys by Innovations International domestic economy, as defined by national boundaries, is the found that compared to white men, women and people of ecology of enterprise and management. . . . But in today’s color were more likely to report that their talents and abili- transnational [environment], the country is only a ‘cost cen- ties were being significantly underutilized at work: White ter.’ Management and national boundaries are no longer men on average report 85 percent of their abilities are being congruent.” America is becoming, as more than one writer used; white women, 75 percent; and people of color, only 65 has noted, the world’s first universal nation. percent. Simply from a business perspective, the waste of In short, the critics of the diversity movement are wrong. human capital implied by this discrepancy is troubling. Diversity is indeed here to stay, for reasons both domestic One estimate in the early 1990s was that the turnover and international. Politics, economics, technology, and rate for women was 100 percent higher than for men, and 40 demography are all propelling us toward a more interde- percent higher for blacks than whites. In 1988, Mobil found pendent, multicultural world. But the fact that it is inevitable that women were leaving the company at rates 2.5 times the doesn’t make diversity any simpler or easier. In fact, diversity average for men, after controlling for child bearing. With poses a host of new challenges for business leaders. Among the costs of replacing workers averaging $5,000–$10,000 for these challenges: Getting the most out of a multicultural hourly wage earners, and well over $100,000 for senior man- workforce; appealing to an increasingly segmented con- agers, these costs add up quickly. sumer market; clearing complex regulatory hurdles; and, not As revealing as these numbers are, they barely scratch the least, avoiding lawsuits and negative publicity. surface of the true costs of poor diversity management, because most of its consequences are difficult if not impossible Hidden Costs and Neglected Opportunities to quantify. How to measure the loss of productivity entailed The argument for managing diversity has both positive and by negative attitudes, inefficiencies arising from intergroup negative dimensions. On the negative side, managing diver- workplace tensions, and overlooked opportunities? There are sity poorly entails costs. The most spectacular, of course, are opportunity costs, as well. What if Brand X hadn’t foreseen the costs of litigation and negative publicity. It will be years the potential of the Hispanic market, and lost this growing before Texaco (now ChevronTexaco) lives down one execu- niche to Brand Y? What if 25 percent of women managers tive’s infamous 1994 remark that “the black jellybeans are weren’t burned out or cynical about their firm’s stated com- always stuck on the bottom.” Its share price dropped $5 after mitment to “family values,” when it requires them to work news of that tape recorded remark surfaced.2 60-hour weeks as an unstated condition of advancement? It is

Winter 2002 / Civil Rights Journal 49 safe to assume that most of the burden associated with diver- men who favor working in progressive, dynamic environ- sity failures comes in the form of a penalty or tax against a ments. Or as Ernest Hicks, manager of corporate diversity and firm’s optimum performance, rather than in the form of direct college partnerships at Xerox, says, “People don’t go to work outlays, for example, to settle litigation. for companies that have bad reputations for diversity.” Another is the resource-maximization argument, which But Is It Good for You? states that a firm gains a competitive edge if it is able to hire, Managing diversity is about more than avoiding negative out- retain, and promote top performers, regardless of their comes. Diversity advocates make a stronger claim: Managed racial/gender status. Overcoming the factors that unduly limit well, they say, diversity can be a positive force, spurring cre- employees’ potential liberates talent that may have been ativity, dynamism and excellence, renewing and refreshing stymied or gone under-utilized. The goal, says Carl Brooks, the corporation, and ultimately improving the bottom line. president of the Executive Leadership Council, a group of sen- Authors have made different arguments in favor of diversity, ior African American executives, “is to create an environment and five consistently come to the fore: where everyone feels an opportunity to be discovered and uti- One is the resource-acquisition argument, which states that lized to their capacity.” companies with the best reputations for promoting diversity A third argument is creative problem solving. This claim will attract the best workers. Why? Because, as their share of relies on the common-sense notion that the more perspectives the labor force increases, more and more of the best workers that can be brought to bear on a problem, the more and bet- will be drawn from the ranks of women and minorities. ter solutions you are likely to generate. Other research suggests They’ll naturally prefer an environment known to be friendly that exposure to diversity helps individuals develop more to their concerns—as will ever-increasing numbers of white complex understandings of the world, leading to more pro-

How have minorities fared in corporate America?

ne person with a particularly • The average settlement award for an Human Resource Management, and upclose view of developments in employment practice liability lawsuit firms with more than 250 employees Othe field is Carl Brooks, president of has increased fourfold since 1994 report an average of six sexual harass- the Executive Leadership Council. The ELC alone (see figure 2). ment complaints a year. is an organization of 250 senior-level • Six of every 10 corporations have Meanwhile, white males continue to African American executives and entrepre- been hit with at least one sexual predominate at the higher levels of most neurs. “Progress is slower than we had harassment lawsuit in the past five corporate structures. Hispanics, African anticipated,” he admits. “The big issue is years, according to the Society for Americans, and American Indians are not outright racism, it’s breaking into the more likely than whites or Asians to work club. We’re accepted as senior partners, but Table 1. Major settlements in lower-paying semi-skilled jobs or as with a few exceptions haven’t yet made Settlement service workers. They are less likely to hold Company amount (in millions) Charges that transition to top-level board members white-collar jobs, and if they do, they are Coca Cola $192.5 Race and CEOs.” more likely than whites or Asian Pacific The view that the situation hasn’t Texacoexaco $176 Race Americans to work as typists, clerks, or changed as much as it could have appears Shoney’s $132.5 Race salespeople than as managers or profes- to be confirmed by the statistics regarding Home Depot $87.5 Gender workplace discrimination. Indeed, from Publix $81.5 Gender Figure 1. Harassment charges filed the frequency of the headlines about Denny’s $54 Race with the EEOC in the 1990s workplace lawsuits and the steadily Southern California 14 mounting sums awarded as a result of Edison $11 Race 12 All Equal Employment Opportunity Commis- 10 SOURCES: Scott Leith, “Coke Near Trial on Bias Law- sion (EEOC) complaints, it can seem like suits,” The Atlanta Journal and Constitution, Apr. 3, 8 the situation has improved very little. 2002, p. 3D; Los Angeles Times, “EEOC Seeks Role in Texaco Settlement,” Nov. 21, 1996, p. D3; L.A. 6 Race • Highly publicized lawsuits at Texaco Winokur, “Shoney’s Progress Noted Since Settlement,” es filed (thousands) 4 The Atlanta Journal and Constitution, Nov. 16, 1997, p. g Sex in 1997 and Coca Cola in 2000 were 2 3Q; “Apple Ad Debut,” USA Today, Sept. 22, 1997, p. har settled for $176 milion and $192 C National Origin 1B; Simon Barker-Benfield, “In an Employment Scene 0 million, respectively (see table 1). That is Evolving for Workers of Both Genders,” The 90 91 92 93 94 95 96 97 98 99 Florida Times-Union, Feb. 2, 1997, p. A-1; “An Encour- • The number of charges filed with SOURCE: U.S. Equal Employment Opportunity Com- aging Sign,” Los Angeles Sentinel, July 12, 1994, p. 6; mission, Trends in Harassment Charges Filed with the the EEOC has grown by 100 percent Allyson Quibell, “Big Deals, Big Suits,” The Recorder, EEOC During the 1980s and 1990s, n.d., accessed at Oct. 3, 1996, p. 4. over the past decade (see figure 1). www.eeoc.gov/stats/harassment.html.

50 Civil Rights Journal / Winter 2002 ductive and creative problem solving. In other words, diversity example, can help forge economic links between the not only spurs work groups to be more creative, but inspires United States and their countries of origin; their bilingual individuals to become more creative as well. children help U.S. multinationals penetrate foreign mar- A fourth argument is the marketing argument, which, sim- kets. ply put, says that successful marketing requires a thorough and intimate knowledge of the culture you are marketing to. Diversity Dilemmas Diversity consultants invariably cite the example of Ford A number of conceptual and intellectual dilemmas bedevil attempting to sell its Nova cars to Hispanics, seemingly the diversity movement. Like vast tectonic plates, they unaware that “no va” means “doesn’t go” in Spanish. A more determine much of the diversity movement’s topography, its recent example is the U.S. Army’s new motto, “An Army of fissures and mountain ranges and occasional volcanic con- One,” which was translated into Spanish as “Yo soy el army.” troversies, yet remain largely hidden from view. Only advertisers familiar with shades of meaning and the One of them is how to acknowledge and discuss group actual speech habits of Hispanic Americans would select the differences without resorting to stereotypes. One of the English word “Army” over the Spanish “Ejercito”—which for nation’s most prominent diversity consultants, for example, many recent immigrants from countries with turbulent pasts has written a whole book about the differences between has decidedly negative connotations. groups. In it, one learns that “personal style is important in A fifth argument relates to globalization. It says that the way African Americans talk, walk, dress, work—in every the skills, languages, and cultural competencies of Amer- aspect of life”; that Asian Americans value modesty and ica’s diverse workforce are an invaluable resource in help- humility; and that “Latin Americans highly value their emo- ing firms compete abroad. America’s immigrants, for continued on page 54

sionals. As of this writing, only two For- number of black senior executives at For- It is important to emphasize these tune 500 companies are run by women; tune 500 companies has roughly dou- improvements, because a constant only four are led by members of an ethnic bled, says Brooks. And 89 percent of For- drone of bad news can suggest that the minority group. Fully 18 percent of For- tune 500 companies now have at least problems are too far-reaching or intract- tune 500 companies count no women one ethnic minority on board, compared able to be much affected by anything among the ranks of their corporate offi- with 56 percent in 1990. business executives do. In fact, there has cers; 11 percent have no people of color. The gains for women are even more been a great deal of progress—and That’s the bad news. The good news is impressive. The percentage of women more progress is likely, because many of that great strides have been made over managers and professionals went from 14 the initiatives that began 10 to 20 years the past few decades. Since 1960, the to 29 percent over the past decade. ago are just now bearing fruit in the percentage of African American workers Women make up 12.5 percent of corpo- form of senior, top-level managers and in managerial or professional positions rate officers in Fortune 500 companies, up executives. C R has increased sixfold. In the past decade from 8.7 percent in 1995, and the num- alone, the percentage of black managers ber of Fortune 500 companies with a 1 Women of color have not been as fortunate: They make up only 1.3 percent of corporate officers, and or professionals has jumped 6 points, woman top earner went from 29 to 83 only six women of color are top earners. There are from 16 to 22 percent (see figure 3). The (see figure 4).1 insufficient data on other major ethnic/racial groups.

Figure 2. Compensatory awards, Figure 3. Managerial or professional Figure 4. Percent of women managers means and medians, 1994 to 1999 jobs by race/ethnicity, 1990 to 2000 49.6 of managerial and professional $1.2M 35 specialty positions $1M 30 40.5% of U.S. labor force White, non-Hispanic 12.5% of corporate officers $800K 25 11.7% of board directors $600K 20 Award Mean Black 6.2% of highest titles $400K 15 4.1% of top Hispanic earners $200K 10

Award Median % employed (16 and older) 0 ’90 ’91 ’92 ’93 ’94 ’95 ’96 ’97 ’98 ’99 ’00 2 Fortune 94 95 96 97 98 99 500 NOTE: Include executives, administrators, managers. CEOs SOURCE: Jury Verdict Research: Employment SOURCE: U.S. Census Bureau, March Current Practice Liability, Jury Award Trends and Statistics. Population Survey (CPS), 1990 to 2000.

Winter 2002 / Civil Rights Journal 51 The Protected Categories

paradox lies at the heart of many wrong, but can lead people to underes- now self-identifying as Hispanics, they diversity initiatives. Most define timate the extraordinary potential of this have come to exert a growing influence A diversity in the broadest possible group, considered both as a market and on the cultural and intellectual life of the terms—encompassing, to quote from as a workforce: nation. This influence extends from the one diversity manual, “all the ways that • African Americans have the highest popularity of Latin Beat to the efflores- we are human, including our values, buying power of any minority cence of Hispanic literature. It is an influ- perspectives, personalities, and experi- group, at $532 billion per year ence that will only continue to grow, as ences.” The impulse behind these defini- (1998), up 73 percent since 1990. more than one-quarter of the U.S. popula- tions is noble: to make sure that every- • Almost 50 percent of African Ameri- tion is expected to be Hispanic by the year one feels included—even groups, such cans own their own homes. 2050. Hispanics represent a burgeoning as white men, who might feel threat- • African Americans outpace the gen- market as well as a growing labor force. ened or excluded by diversity initiatives. eral population in terms of growth in The total purchasing power of the group In practical terms, however, several ele- household income, small business has more than doubled since 1990, and is ments of personal identity usually come creation, mortgage origination, and now estimated at $450 billion. More than to the fore in diversity initiatives: Race, higher educational attainment. one million Hispanics report an annual Ethnicity, Gender, Age, Religion, Disabil- income of more than $75,000. Younger, ity, and Sexual orientation (REGARDS). Unfortunately, African Americans con- on average, than non-Hispanics, they are That is because these dimensions of a tinue to face substantial hurdles in corpo- also the most geographically concen- person’s identity remain the most rate America. Many feel they are forced to trated, with more than 80 percent residing socially significant. It is along these lines contend with unvoiced attitudes, suspi- in just five states: California, Texas, New that people are most likely to be dis- cions, and stereotypes that they are having York, Florida, and Michigan. Hispanics face criminated against—that is, to be constantly to overcome. Among these a distinct set of problems. They are, pro- treated unfairly because of some irrele- assumptions: that they are “affirmative portionately, the least well-represented of vant group characteristic. And it is along action hires,” and therefore less deserving the major ethnic and racial groups among these lines that groups have organized than others of their position; that they are the managerial and professional elite. to protest their mistreatment and pro- less capable or intelligent or hardworking; Indeed, only 1 percent of executives at tect their rights. This section very briefly that at heart they have negative and corporations having more than 100 work- explores the situation and concerns of resentful attitudes. African Americans are ers are Hispanic. This statistic partly reflects each of the major groups. also most likely to report feeling the need language and educational barriers. to suppress aspects of their personalities Approximately half of all school-age His- AFRICAN AMERICANS and identities in order to blend in with the panics are obtaining high school diplomas, African Americans remain America’s most corporate culture. And they report having compared with nearly 90 percent of blacks visible minority. Throughout our history, to work harder simply to be given the and whites. But, say advocates, the dispar- they have been the minority group that same opportunities as others. ity also reflects ongoing stereotypes of His- defines what it means to be a minority panics as macho, temperamental, and group in America, and their story is LATINOS low-skilled. In addition, some evidence ineluctably entwined with the nation’s News that Latinos had effectively sur- suggests that Latinos have not been given own struggles to live up to its highest passed African Americans as the nation’s the sustained attention that many firms ideals. Until very recently, they were also largest minority group was the biggest have recently paid to African Americans, the largest minority group in terms of headline to emerge from the 2000 Census. and that mechanisms for recruiting His- population. Their political activism, their But even before then, Hispanic communi- panics (for example, college job fairs) are achievements in high-profile fields such ties were capturing the attention of mar- not as developed as they could be. as entertainment and sports, and their keters, advertisers, and politicians. rich cultural legacy give them a visibility The diverse cultures, traditions, and ASIAN PACIFIC AMERICANS that other minority groups are only countries of origin of Hispanic Americans Although they are the nation’s fastest grow- beginning to approach. (When asked to virtually guarantee that any summary of ing population group, Asian Pacific Ameri- estimate what percentage of Americans their accomplishments will be incomplete. cans are often overlooked. They are the are black, most Americans, black and Their historical experiences run from colo- most diverse ethnic/racial group, exceed- white, guess in the range of 25–40 per- nization and conquest to immigration and ing even Hispanic Americans, since they cent; in fact, only a little more than 11 exile. The Hispanic American civil rights encompass Japanese, Indians, Chinese, percent of Americans are black.) movement, led by such inspiring leaders as Korean, Pacific Islander, Filipino, Viet- Less well appreciated is the economic Cesar Chavez, helped bring Hispanic namese, and other nationalities, each with strength of black America. Stereotypes Americans into the mainstream of Ameri- their own language and a complex and of blacks as poor, criminal, welfare- can social and political life. With more than often contentious history of interaction. dependent, lazy, and so on, are not only 30 million inhabitants of the United States They range from pre-literate Hmong

52 Civil Rights Journal / Winter 2002 refugees, to highly skilled immigrant Indian larly within the business sector. There Native Americans in a situation of poverty software designers, to seventh- and eighth- are, however, 4.5 million American Indi- and economic depression, with little generation Japanese American World War II ans/Alaska Natives in the United States, opportunity for advancement, particularly veterans. Considered as a group, Asian making up 1.5 percent of the total pop- on geographically and socially isolated Americans have done well: the average ulation. Within that group are widely reservations. Native tribes and villages household income is $6,000 higher than varied cultural and tribal distinctions. have some of the highest poverty and that of Caucasians, and $21,000 higher Because of their unique circumstances unemployment rates in the country, at 33 than that of African Americans. They also and government relationships, Native and 43 percent, respectively, for those liv- enjoy the highest educational level of any Americans remain largely clustered and are ing on or near reservations. Some reserva- racial/ethnic group in the United States. less integrated with the rest of society than tions, such as Pine Ridge in South Dakota, Thirty-eight percent hold bachelor’s other racial/ethnic minority groups. It is experience unemployment rates as high as degrees versus 22 percent of non-Hispanic estimated that 40 percent of American 85 percent and poverty rates at more than whites, 11 percent of African Americans, Indians live on reservations; the remaining 60 percent. The same destitution is visible and 10 percent of Hispanics. High levels of 60 percent live either close to reservations in Alaska Native villages, where one-fifth of entrepreneurial activity have also boosted or farther away in rural communities. Rela- inhabitants live below poverty, and in Asian American incomes. According to the tively few live in urban environments. The some, unemployment rates exceed 80 Small Business Administration, 56 percent, majority of the American Indian/Alaska percent. or $275 billion, of all minority business sales Native population resides in the West (43 Despite federal obligations to tribes and come from Asian Americans, compared percent) and South (31 percent). Among villages, there has been little improvement with $184 billion from Hispanics and $59 Alaska Natives, the vast majority live in in economic conditions and opportunities billion from blacks. remote rural villages, highly segregated over the years. As table 1 indicates, there However, these statistics can mask gross from the state’s economic epicenters. are proportionately fewer Native-owned disparities among different Asian Pacific An unfortunate history of domination firms than are owned by any other group. American communities and contribute to and removal has left a large number of continued on page 54 the stereotype of Asians as a “model minority,” whose hard work, intelligence, Table 1. Business ownership by race and ethnic group, 1987 and 1992 and success rebut allegations that discrim- ination and prejudice remain problems in Number of firms Firms per this country. On the contrary, many Asian (thousands) 1,000 population Pacific Americans report having experi- Race/ethnicity 1987 1992 1987 1992 enced various types of discrimination. For White, non-Hispanic 12,482 15,298 57 80 example, they are often mistaken for non- African American 424 621 15 20 citizens and asked where they learned such good English. They are viewed as Hispanic 422 772 21 32 technically competent, but lacking in Cuban 61 92 63 84 interpersonal and leadership skills. Many Mexican 230 379 19 25 Asian Pacific Americans continue to expe- Puerto Rican 35 47 11 17 rience a “glass ceiling,” limiting their Other Hispanic 104 263 23 47 mobility into the highest ranks of execu- Asian/Pacific Islander 355 565 57 68 tive and administration positions. And a Korean 69 99 102 113 recent poll of American attitudes and Asian Indian 52 89 76 93 beliefs found that a substantial majority Chinese 90 148 63 79 still subscribe to stereotypical judgments Vietnamese 26 58 49 78 about Chinese Americans—for example, Japanese 53 62 66 69 that they are “clannish.” Filipino 40 60 33 37 Hawaiian 4 8 22 34 AMERICAN INDIANS AND ALASKA American Indian/Alaska Native 21 41 14 19 NATIVES Aleut 1 1 54 47 American Indians/Alaska Natives are per- Eskimo 2 2 44 38 haps the most invisible minority due to American Indian 18 38 10 18 their relative small size. Comparatively NOTE: Hispanics may be of any race. African American, Asian/Pacific Islander, and American Indian/Alaska little data is collected by mainstream Native totals include some Hispanics. (i.e., non-Native) organizations, so the *Authors’ estimates based on total population figures derived from interpolation of published figures. needs and characteristics of Native pop- SOURCE: U.S. Census Bureau, Survey of Minority-Owned Business Enterprises, various volumes. ulations often go unrecognized, particu-

Winter 2002 / Civil Rights Journal 53 tions.” These generalizations come perilously close to being The answer, it would seem, is to be alert to the potential for stereotypes. Is the alternative, then, to pretend that group differences without presuming them of any particular indi- differences don’t exist? Many diversity experts would say no: vidual. Say, for example, you’re chairing a meeting discussing It is important, they say, to recognize that groups differ along prospective job candidates with several colleagues you don’t important lines, and to respect and value those differences. know particularly well. One, a Midwesterner of Norwegian But what precisely do those differences consist of? Here, descent, speaks favorably of a certain candidate, but without angels fear to tread, and even most consultants turn mute. any real emotional emphasis. There are at least three possible So what is the confused manager to do? readings: 1) your colleague likes the candidate, but doesn’t

The Protected Categories (continued)

There is untapped potential among Native income by gender, with women assumptions that they—and society in populations, an opportunity universally earning about 74 cents for every general—have long operated under. ignored by big businesses and private dollar men earn.1 Labor participation rates of the elderly industry. Corporate attempts to improve have drifted downward for nearly a cen- diversity should include outreach to and The proportion of women in the labor tury, for example, as Social Security and recruitment of Native populations, particu- force has grown steadily over the past five pensions have provided guaranteed larly in saturated regions of the country. decades, from 29 percent in 1950 to 47 income. But many boomers will want to percent in 1997. They are expected to continue working past the traditional WOMEN reach parity by 2010. And women’s labor retirement age, either because they enjoy In 1943, the Office of the Secretary of participation rate (the percentage of their work or because they need the War issued a pamphlet titled “You’re women in the job market) grew from 33 income. (Few observers expect Social Going to Employ Women,” which con- percent in 1950 to 61 percent in 2000. Security and Medicare to remain as gen- tained the following: “A woman worker is Two-thirds of women with children under erous in the years after 2020 as they are not a man; in many jobs she is a substi- the age of 6 now work, up from 47 per- today. The benefits that enabled the past tute—like plastics instead of metal—she cent as recently as 1980. two generations of Americans to retire in has special characteristics that lend them- However, employers are only begin- relative ease are unlikely to persist, say selves to new and sometimes much supe- ning to come to grips with the conse- experts, because the proportion of work- rior uses.” As the cigarette ad insists, quences of these trends. The traditional ing to elderly adults will shift dramatically women have come a long way since career path, a “lock-step, full-time march over the coming decades, from about then. Or have they? Although women are to a one-way, one-time retirement,” four-to-one in 1995 to about two-to-one a majority of the population, and some developed during the heyday of the male in 2030.) Employers will have to recon- 46 percent of the workforce, they are breadwinner, remains the norm at most sider retirement planning and benefit often grouped as a minority or “pro- firms. But it is, as one demographer has programs. They will also have to figure tected category,” both in law and in prac- expressed it, an “antiquated career tem- out how to make room for middle-aged tice. The reason? They continue to be plate.” Today most working husbands subordinates who find their opportunities subject to various kinds of job-related dis- have working wives, and most children for advancement blocked by the continu- crimination, from pay inequities to have working mothers. Increasingly, firms ing presence of senior personnel. harassment to “glass ceiling” limits on will find it advantageous to adapt new their career. A few examples: and innovative strategies to retain PEOPLE WITH DISABILITIES • A 1995 report found that 95 percent women employees, through flex and There are as many as 54 million Ameri- of senior managers in the largest part-time schedules “mommy (or parent- cans with disabilities, including some 17 U.S. companies were men. ing)” tracks, family leave, and telecom- million who are of working age. Of these, • According to a 1996 study, less than muting, for example. some 32 percent, or 5.8 million, are cur- 3 percent of federal contracts went rently employed. Fully 56 percent of to women. Male physicians earn OLDER AMERICANS those who say they are able to work are $1,553 per week, compared with The graying of the American worker is currently working, up from 46 percent in $899 for females; male securities one of the dominant trends in today’s 1986. And 72 percent of those who and financial professionals earn labor force. The oldest of the baby aren’t employed say they would prefer to $1,118 per week, compared with boomers hit 55 in 2001, and as this be working. Four trends are likely to $641 for females. demographic bulge moves toward the increase the number of disabled Ameri- • Overall, research groups continue rear of the population snake, it will force cans in the workforce: to find large discrepancies in employers to rethink many of the • First, in part because of the aging of

54 Civil Rights Journal / Winter 2002 care enough to make a big deal of it; 2) your colleague likes the creetly ask others who know her better how emphatically she candidate, but is naturally taciturn; 3) your colleague likes the tends to express herself; you can ask her to summarize her candidate, but is culturally conditioned, being from Garrison view in a memo; or you can simply take note of the ambigu- Keillor country, to reign in displays of enthusiasm. On the ity, and continue to observe her in future interactions. The basis of what you know so far, you probably can’t tell how point of being aware of cultural differences is not to mechan- much consideration to give your colleague’s expressed prefer- ically ascribe everything to those differences, but to become ence. What do you do? Well, you can ask your colleague to more skillful at making the kind of nuanced judgments that elaborate on her point of view; you can, after the meeting, dis- are critical to long-term business success.

America, there are ever-larger num- of this group. Collectively, people with policies that recognize domestic partners bers of people with disabilities. disabilities possess a disposable annual as spousal equivalents for insurance and • Second, new technology—every- income of more than $175 billion. Add pension benefits; developing advertising thing from sophisticated speech the incomes of household family mem- that features positive images of gays and recognition software to robotically bers, and that number is more than a tril- lesbians; and selling products specifically enhanced wheelchairs—is making it lion dollars. A 1994 study conducted by to the community through gay- and les- possible for many of those with dis- National Family Opinion, Inc., for the bian-focused media. The evidence sug- abilities to lead more productive 1996 Paralympic Games showed that gests that these kinds of efforts pay off: A lives. people with disabilities are more likely to vast majority of gays and lesbians say they • Third, there is a greater public purchase goods and services from com- prefer brands that recognize and include awareness of the potential of this panies that are “disability friendly.” them, while 87 percent report boycotting group of employees, in part because companies known to have negative of the public education activities of GAYS AND LESBIANS stance toward the population. C R such advocacy groups as the It is difficult to estimate the economic

National Organization on Disability strength of gays and lesbians, in part 1 The significance of this statistic is much disputed. It and the Department of Labor’s Office because no one really knows what per- does not take into account the fact that men and of Disability Employment Policy. centage of Americans are actually gay and women choose different careers, such as police ver- sus elementary school teachers, which may pay dif- • Fourth, new laws, such as the lesbian. Estimates range from 2 or 3 per- ferently. Nor does it register the fact that men and Americans with Disabilities Act and cent to upwards of 10 percent. Although women, even within the same career, often choose the many state variants this 1990 data suggesting that gays and lesbians different trajectories, with women more likely to take several years off at midcareer to bear and raise federal law inspired, have given dis- have higher incomes than the average children. There has been surprisingly little solid abled Americans opportunities they American have been widely publicized, research on what the residual differential is when may have been denied earlier.2 gays and lesbians are, in fact, found these and other potentially relevant factors are con- trolled for. However, thoughtful analysts estimate throughout the spectrum of income dis- that there probably remains a small but statistically All of this is good news not only for tribution: some are poor, a few are rich, significant gap. disabled Americans, but for their and most are in the middle.4 There 2 Recent Supreme Court decisions such as Chevron v. employers as well. Because they are gen- appears to be a distinction, however, Echazabal, 122 S.Ct. 2045 (2002), US Airways v. Bar- nett, 122 S.Ct. 1516 (2002), Toyota v. Williams, 122 uinely grateful for the opportunity, between gays and lesbians, with lesbians S.Ct. 681 (2002), and Barnes, et al. v. Gorman, 122 S. employees with disabilities in the work- earning less, despite relatively similar Ct. 2097 (2002) on ADA will significantly impact the place are more reliable, more depend- eduction levels as gay men. Income differ- lives of people with disabilities. Joan Durocher, Op 5 Ed, “The Supreme Court and The Americans with able, more punctual, and more loyal ences also are evident along color lines. Disabilities Act,” National Council on Disability, July employees than their non-disabled coun- There is some intriguing evidence that 25, 2002, accessed at www.ncd.gov/newsroom/ terparts, according to the Office of Dis- gays and lesbians played a disproportion- news/r02-371.html. ability Employment Policy, which collects ate role in creating the Internet economy. 3 The President’s Committee on the Employment of 3 People with Disabilities was the government agency data and empirical evidence. Further- One recent study found a significant cor- that collected data for decades and was replaced in FY more, most of the changes necessary to relation between the size of a city’s gay 2001 by the Office of Disability Employment Policy. accommodate disabled Americans cost population and the vibrancy of its new 4 M.V. Lee Badgett, “Income Inflation: The Myth of businesses very little. One detailed analy- economy sector. Increasing numbers of Affluence Among Gay, Lesbian, and Bisexual Ameri- cans,” Lambda Legal Defense and Education Fund, sis of a major retail store found that the companies are recognizing the advan- Dec. 1, 1998. total cost of all changes amounted to tages of promoting a “gay-friendly” 5 Judith Bradford, Kristen Barrett, and Julie A. Honnold, $45 per accommodated worker. Business image. Among the strategies companies “The 2000 Census and Same-Sex Households,” is also waking up to the market potential have used: implementing human resource National Gay and Lesbian Task Force, Oct. 9, 2002.

Winter 2002 / Civil Rights Journal 55 A second conceptual dilemma dividing the diversity Brash, self-confident, intense, James, a seventh-generation movement has to do with the set of problems or issues that American of Dutch-English descent, had a quick, analytical are seen as particularly problematic. Because diversity is ulti- mind and the ability to energize the people around him. mately about changing how individuals and groups interact, Hiroko, a first-generation Japanese American who had and the terms on which they interact, the endeavor can grown up in America as a diplomat’s daughter, was quieter, founder along fundamental questions: What determines more reflective, with an elegant personal aesthetic that her human behavior: Psychology? Culture? Institutional struc- boss hoped would rub off on the Web site. tures? What weight should we assign each of these elements, Yet it wasn’t long before James found himself frustrated and how do we model their interaction? These are among by what he viewed as Hiroko’s failure to participate in the the perennial questions of social scientists, and it shouldn’t fast-paced give-and-take of the task force meetings. Again be a surprise that diversity consultants don’t have any con- and again, he would discuss matters beforehand with Hiroko clusive answers to them. and win her approval on critical decisions, only to find that Unfortunately, rather than recognize this dilemma for she would fail to support his proposals—or worse, concur what it is, many diversity consultants have tended to hold with an opposing idea. He couldn’t understand why Hiroko up a piece of the puzzle and present it as the whole. Thus, consistently sought to waste valuable time in the meetings some focus on the continuing problem of stereotyping and doing work that could be accomplished more efficiently by subconscious prejudice. Others argue that behavior, not individual members of the team working on their own. And opinions, are the proper focus of diversity initiatives. For he was dismayed that Hiroko refused to honestly confront them, people’s thoughts and feelings are their own business; the problems they were having, despite his best efforts to what counts is that they don’t behave in a racist or sexist broach them with her. “I thought Japanese were supposed to manner on the job. Still others focus on changing the cor- be so efficient and team-spirited,” he thought, ruefully. porate culture. They argue that too much attention to the Hiroko, for her part, had imagined that she was used to individual employee pins responsibility on the wrong agent. American directness, but found James remarkably insensi- If a diversity initiative fails, they say, it is usually not because tive. She couldn’t understand why he was so quick to shoot some individual employees have failed, but because the down ideas that originated from others, or even show them company’s rules, procedures, practices, and so on, favor cer- the courtesy of properly considering them. It seemed only tain groups over others. To bring this circle to a close, those common sense to her that the task force would work on the who insist on psychological approaches then criticize the big items collectively—otherwise what was the good of put- institutionalists for failing to appreciate the many subtle ting the team together? And truth be told, James’ aggressive ways that prejudice affects even the most benign and well- body language and tendency to invade her space made her intentioned. The resulting cacophony can sound like a nervous, though she knew this was just the American way, proverbial group of blind men describing an elephant—an magnified, perhaps, by James’ outsize personality. unusually large and cumbersome elephant, at that. In this case, neither James nor Hiroko began with nega- This essay generally adopts a wide-angle approach, trying tive emotions or stereotypes of each other—if anything, the to get as much of the elephant into the picture as possible. In stereotypes they might have subconsciously harbored were the sections that follow, it looks at the cultural and institu- distinctly positive. The problem lay in the cultural gap tional factors that affect intergroup relations and that can— between the two, the way each person “read” the other on often inadvertently—serve to benefit some groups at the the basis of assumptions and understandings they had expense of others. It surveys the literature of several disci- acquired over years of socialization. The sad aspect of this plines, from social psychology to anthropology to manage- case is that both James and Hiroko knew of the danger of ment theory, to sketch out some of the key insights of each making cultural assumptions and tried to overcome them. into the complex set of forces that influence how we behave James tried to engage Hiroko in a frank discussion of the toward each other. And it offers its own synthesis of views problems they were encountering; Hiroko knew, and made about how to develop a diversity approach that respects dif- allowances for, American styles of self-expression and body ferences without sacrificing the essential unity and discipline language. Yet both, in the end, proved unable to overcome that any corporation needs to succeed. their own cultural assumptions and beliefs, and the value- laden judgments that came with them. Cultural Divides The anthropologist Edward Hall, one of the early pioneers Not all diversity-related problems arise out of the prejudices of the “culture” concept, famously said that we are “captives and stereotypes that we may consciously or subconsciously of our culture,” rarely more conscious of it than a fish is of harbor about each other. Consider the case of James and water. Culture, in this case, means something different from Hiroko, two casual friends at a regional accounting firm, what it means when we say of someone who likes the ballet jointly assigned to be team leaders of a task force developing and opera that she is “very cultured.” In the anthropological the company’s Web site. Their boss hoped the two friends sense, culture refers to the totality of ways that we understand would bring complementary strengths to the project, and and interact with our environment and each other—the the two honestly looked forward to working with each other. norms, values, beliefs, understandings, orientations, and so

56 Civil Rights Journal / Winter 2002 on, that govern our actions and behaviors. we may seek to control them by tamping them down, or by As the metaphor of the fish in water suggests, our own inhibiting our expression of them, but for the most part, we culture surrounds us yet remains largely invisible. Think, by don’t think self-critically about our emotions as we are way of analogy, of a person’s accent or language. Usually, we experiencing them. Becoming aware of what we are feeling, think of other people as speaking with an accent. Few of us are and being able to articulate that feeling with some speci- aware that we speak with any discernible accent until we are ficity, is, therefore, something of a learned skill. But it is, put in the situation of being different from the norm. Even Storti argues, one that can have a big payoff (see figure 3). then, we silently wonder why they don’t speak like us. Storti focuses on culture shock, the cumulative, multi- Culture extends and amplifies this problem. As in the case ple pressures that come from living abroad. It is a weary- of our accent or language, the awareness that our normal, ing condition, like always being the new kid in a school habitual, “default” way of doing things is particular, rather where they don’t speak your language, teach unfamiliar than universal, usually only arises when subjects, and serve food you’re not we are faced with someone who does Figure 3. Process of adjustment used to. But many of the same dynam- things differently—or when we, our- ics are at work whenever individuals selves, become aware that we are differ- We expect of different cultures come together. ent. Unlike language, however, it’s not The potential client from Turkey, the always clear what the difference consists but they aren’t Hispanic co-worker, the Thai subordi- of. Most of what constitutes a culture is nate: Increasingly, all of us are being hidden from us by its very ubiquity. It is forced to deal with people who come not just the words that differ, but the from different cultures.3 And how assumptions, beliefs, and values that Thus, a cultural effectively we perform our job incident occurs, underlie which words get said and in depends in part on how well we can what context. We know what the Por- work across cultural divides. tuguese word for knife is; or at least, we But how, short of a deep immersion know that Portuguese has a more-or-less in a culture, can we develop the inter- exact corresponding word for knife (an causing a reaction cultural facility Storti speaks about? (anger, fear, etc.), assumption we couldn’t make, by the Without the daily, in-depth, experi- way, of some hunter-gatherer tribes in ence of encountering differences, how the Amazon jungle). But we don’t know, can we learn to behave in a culturally except by long immersion in the culture, and we We become aware sensitive manner? Today’s visitor may what a Brazilian way of doing business is, withdraw. of our reaction. be from Turkey, but tomorrow’s will be what norms of reciprocity, timeliness, for- from Brazil, and next week’s from mality, trust, hospitality, hierarchy, status, South Africa. The same variety is true and so on, should govern any given situ- of our employees. We can’t be ation. All we can be sure of is that they We reflect expected to know and understand the probably differ in important respects on its cause. cultural background of every person from our own. we do business with. The problem is that we instinctively Part of the answer to that question is expect others to behave more or less as that no one expects us to. If your busi- we do. We’ve been taught—our whole And our reaction ness requires you to be in regular contact experience in the world has taught us— subsides. with a specific group—whether you’re a what to expect, what’s normal, fair, or restauranteur or a banker—learning a lit- reasonable. We rely on those expecta- tle about the culture and people you are tions to make sense of the world and to in contact with will almost certainly be able to function credibly within it. We observe repay the effort, and learning a lot about the situation, When those expectations are foiled, we them can be a life-enriching process. But can become frustrated, angry, or with- in most cases, it is enough simply to be drawn. Craig Storti, an ex-Peace Corps aware that differences can arise. Moni- volunteer who has written an excellent toring your behavior, and reflecting on book (“The Art of Crossing Cultures”) the other person’s, can help guide you which results about cross-cultural adaptation, says that toward an accommodation. You don’t in developing the key is to become aware of our emo- culturally need to be an expert; people will appre- tional reactions to cross-cultural differ- appropriate ciate your sensitivity provided you seem ences as they arise. expectations. to be making a good-faith effort to com- This is no easy process. Most of the prehend them. time, we simply have emotions. True,

Winter 2002 / Civil Rights Journal 57 Institutional Factors policy might be a special orientation session for new recruits No question has spawned as much debate in the diversity of color, or mentoring programs designed to familiarize non- field as the question of how an organization ought to traditional groups with the organization’s values and mores. change if it is to accommodate diversity. In part, this is The “Multicultural” approach, by contrast, is predicated because the question is highly abstract; even people who on the notion that minorities and women bring strengths might agree about the right course of action in any specific rather than deficiencies to the organization. It seeks ways to instance can disagree passionately about their rationale for capitalize on these strengths. The primary exponent of this pursuing it. There is, as well, a tendency among diversity approach is R. Roosevelt Thomas, who urges corporations to experts to cordon off different answers to the question as revisit the assumptions that define the work culture in order though each represented a major shift in policy, before to make the organization work more effectively for all its articulating their own (patented and improved) approach. employees. Thomas identifies several of the most common In fact, most of the diversity strategies that have been of these assumptions: The notion of the manager as the developed probably aren’t as distinctive in practice as they team captain, whose primary job is to lead by the example of are in theory. Still, it is worth outlining some of the more his or her performance, rather than as the coach, whose job common responses. it is to elicit the best performance of everyone on the team; The first might be said to be the “Golden Rule” approach. the idea that the company is a family, which can, he says, This approach demands of all employees that they treat each seem paternalistic to many minorities; and the notion that other as they, themselves, would wish to be treated. It is prob- managing diversity is an event rather than a process. ably the default diversity management strategy among small A few years after Thomas’ seminal publication in the Har- to mid-size firms without formalized human resource func- vard Business Review, David Thomas (no kin to Roosevelt) and Robin Ely published their own managing-diversity approach The great challenge in the same publication. For Thomas and Ely, the diversity field has already undergone one significant shift: It has is to reconcile moved from a “discrimination-and-fairness” paradigm to an complex and “access-and-legitimacy” paradigm, which they characterize in terms similar to the ones Thomas uses to describe the sometimes movement from affirmative action to multiculturalism. That competing notions shift, they say, entails a recognition of the positive benefits of having a diverse workforce. Its raison d’etre is the need to over fairness and respond to the nation’s increasing heterogeneity through a equality. more representative labor force. Its strength is its emphasis on the business rationale, a motivation the entire company tions—in other words, among firms where the policy is could support. Its weakness, say Thomas and Ely, is that it largely unarticulated. It understands that discrimination and tends to push minorities into pigeonholes such as human prejudice are wrong, and its underlying goal is to see to it that resources or community outreach. There has not been a cor- the employees get along. What it does not do is recognize responding effort to integrate them into the company’s that more subtle forms of discrimination exist, or acknowl- mainstream, revenue-generating work. edge that the company itself needs to do things differently to The “learning-and-effectiveness” paradigm that Thomas ensure that everyone is given a fair chance to succeed. and Ely propose is based on “rethinking primary tasks and The “Right the Wrongs” approach was popular in the redefining markets, products, strategies, missions, business 1970s and early 1980s but has since been waning. For many practices, and even cultures” by incorporating employees’ years, it served as the primary basis for affirmative action perspectives into the main work of the organization. It pro- programs. The emphasis of this approach is on ensuring motes equal opportunity and recognizes cultural differences, that women and minorities are granted their “fair share” of but it goes beyond the earlier two paradigms in asking of the opportunities throughout the organization. In practice, corporation that it internalize differences among employees many of these programs focus on entry-level positions, with so that it learns and grows from them. the expectation that the effects will radiate upwards For Thomas and Ely, the key to making such an organiza- through the organization over time. Part of the reason this tion viable, to giving employees a feeling that they have a approach is waning is that those expectations have not stake in the company, is to change its culture. That cultural been met to the degree it was hoped. transformation takes many forms. It means pushing the The “Assimilation” approach takes a more aggressive pos- organization toward the demands of flexibility, openness, ture to ensuring the success of minorities and women. It and spontaneity over hierarchy, control, and secrecy. It understands that traditionally excluded groups are not as means focusing on the employee’s workplace satisfaction, likely to possess the soft skills and competencies of the his- on supporting both individual initiative and group cohe- torically dominant group, and makes proactive efforts to siveness. It means redefining the role of the loyal subordi- “socialize” them into the organization. An example of such a nate. “By condemning loyalty construed in terms of unques-

58 Civil Rights Journal / Winter 2002 tioning servitude and praising people who have the courage its own way. This section focuses on the common, underly- to question, blind obedience can be stigmatized,” say a team ing principles of successful diversity efforts—the strategies, of management professors from Columbia University. And it rather than the tactics. In later sections, we’ll take a look at means emphasizing cooperation and teamwork, consensual the nuts-and-bolts, the actual policies and procedures that problem solving and decision making. All these traits, say make for successful diversity initiatives. In this section, the experts, are likely to provide the context in which a diversity focus is at a higher level of abstraction: Not on what needs to of opinions, personalities, and types can flourish. Con- be done, but on what needs to be the case, the precondi- versely, they are also likely to be the types of organizations tions, for any effort to succeed. that most benefit from diversity. Perhaps the single most important ingredient in success- The next section will examine how to put these ideas into ful diversity programs is commitment from the top. In fact, practice. it’s safe to say that no diversity effort has ever really suc- ceeded without that commitment. Diversity is too amor- Best Practices phous, too easily relegated to a second-tier status, to be driven by subordinates. If diversity is not a leadership prior- Overview ity—and just as importantly, seen as a leadership priority— Once upon a time, it was going to be so simple. White men, it can wither on the vine, a succession of half-instituted, forced by law to change, would set aside the prejudices and uncoordinated measures. That doesn’t mean that the CEO stereotypes they had used to exclude other groups for so must oversee the day-to-day management of the initiative. long. Liberated from their oppression, people of color and But it should be clear that the top brass are taking the efforts women would quickly achieve social and economic parity. seriously, and that they expect everyone else in the com- Today that dream can feel like chimera. Though they dis- pany to do so as well. As Ted Childs of IBM puts it, “Employ- agree passionately about the reasons, both the right and left ees devote their energies to what the management spends its agree that the manifest inequalities that marked social rela- time on, because that’s how they know what management tions during the days of Jim Crow have not faded nearly as truly believes to be important.” much as most people had hoped they would. A vast gulf in Jack, a sales executive with a software design company, perceptions prevails: Most people of color and women remembers what can happen when leaders fail to “walk the believe that racism and sexism are alive and well; most white talk” on diversity issues. “Diversity was always something of men believe that incidents of discrimination are the excep- a joke” at his old firm, he says. “Every once in a while, the top tion, and worry more about false accusations than about brass would issue some memo about how everyone at the eliminating ongoing disparities. Much of the diversity field firm is valued and how we should respect our differences, and ultimately springs from this conundrum: We have achieved everyone would say, ‘Yes, boss,’ and then we would go on a formal legal equality but not economic and social equality. doing exactly what we were doing beforehand. It bred a cer- For business leaders, this dilemma plays out in various tain amount of cynicism—about diversity, but ultimately, ways: In decisions over who to hire, promote, or terminate, about the leadership itself. Most of the rank-and-file engi- but also in issues as mundane as who sits with whom at the neers felt these were just token pronouncements designed to cafeteria. The great challenge for diversity managers is to keep the company in the clear if there was ever any lawsuit.” reconcile complex and sometimes competing notions over There is the opposite danger, of course. And that is that basic values of fairness and equality. It is to balance the fact the leadership gets too far in front of the rank-and-file, that that social systems, left to their own devices, tend to repro- it is perceived as bullying or threatening. Diversity is already duce themselves along race, class, and gender lines, with a loaded topic. People bring a great deal of anxiety, fear, and interventions that do not create unintended inequalities of hope to the table once a diversity initiative is announced: their own. It is to create a level playing field that yields “Does this mean that I won’t get that promotion because I’m results that are not only fair, but seen as fair, by very differ- not the right race/sex, etc.?; Does this mean I’ll finally be ent constituency groups. able to sign my partner up for health benefits, and if so, is it The following section outlines how an organization time for me to come out of the closet? Does this mean I’m might square these various circles. It discusses how to go going to be sued/fired/reprimanded for that racy joke I told about instituting a diversity initiative, summarizes the prin- last week at lunch?” If leaders act too quickly, fail to educate ciples on which one should be based, and provides a menu employees, and attempt to diversify by fiat rather than by of real-world practices that companies have found useful. coaching, the effort can end badly. Diversity is an intrinsically controversial topic. But these “There’s nothing worse than management suddenly ‘get- policies and practices can help companies forge a consensus ting religion,’” says Tyler Vance, a diversity consultant who on how best to proceed. has seen “too many” such efforts backfire. One firm invited him to come in after a particularly disastrous presentation by A Strategy one of the senior vice presidents. “The VP gave the keynote With apologies to Tolstoy, most successful diversity pro- speech at a corporate retreat on diversity,” Vance recalls. “He grams are alike, but every unsuccessful one is unsuccessful in pulled out all these charts and graphs, which basically

Winter 2002 / Civil Rights Journal 59 showed that the company, no surprise, was filled with white increasingly become a business imperative. men. And then he pulled out a new set of charts, demon- • Third, that they will be consulted in the development strating how the company’s racial/gender profile would be of the diversity plan. “There is no better way to get expected to change over the next five years. Well, you don’t people on board than by encouraging them to partici- need to be a genius to figure out how all the white men pate from the outset,” says Vance. “Often, employees reacted. The whole weekend was spent discussing ‘reverse will have better, more effective ideas about how to pro- racism’ and ‘double standards.’ It took months to neutralize ceed than the leadership. Diversity can’t be micro- the bad feelings that developed out of that one speech.” managed; set goals and help your team achieve them.” That brings us to the second principle: Bring people on board. Explain diversity in a way that encourages employees Once you’ve secured commitment from the top and to feel they have a stake in its success. That means making begun bringing people on board, the next step is to assess sure that they understand three things, says Vance. where the organization currently stands. This is commonly • First, that diversity is about inclusiveness; that it’s not done through a diversity audit. There are perils associated simply a code word for minority concerns, but with conducting a diversity audit—the main one being that embraces a new way of thinking about maximizing the company may be forced to disclose the results in the the potential of everyone within the organization. event of litigation. (Of course, the same audit cannot be used • Second, that diversity is not simply the right thing to as a sword against litigant claims without then becoming dis- do, it’s also the smart thing to do. Whether it’s foster- coverable.) Furthermore, as Cyrus Mehri, one of the nation’s ing intergroup understanding within the corporation, leading employment lawyers points out, the danger only or improving the company’s ability to serve an increas- really comes about if the company simply shelves the subse- ingly diverse market or client base, diversity has quent report. “When your folks come to you [with a report of A Best Practices Cheat Sheet

General Principles: and educational institutions, partici- and make sure that mentors are given • Engage in an ongoing study and eval- pate in minority career festivals, and the training they need to successfully uation of the organization’s current advertise in minority media. nurture junior employees who are efforts to promote diversity. • Develop educational outreach pro- women and people of color. • Eliminate any policies and practices grams, such as scholarships, intern- • Provide employees with tools, such as that present ongoing barriers to ships, and work/study programs. career resource centers and evalua- minorities. • Explore community involvement tion programs, to help them proac- • Decide what the organization’s short- options that bring the company tively manage their own careers. and long-term diversity goals should goodwill and that open lines of com- • Keep promotion policies transparent be. munication. and ensure that opportunities are • Develop a coherent plan to reach • Work on eliminating barriers to hiring accessible to all. these goals, and set aside sufficient minorities, and communicate to all • Study and validate promotion and resources to help bring them about. stakeholders the company’s ongoing compensation policies and proce- • Establish clear policies, communicate efforts to expand the candidate pool. dures. them to all employees, and follow • Make sure that all of those responsi- them rigorously. ble for hiring are fully briefed on the Terms and Conditions: • Conduct periodic reviews of policies company’s policies and legal require- • Develop family-friendly policies and and programs to establish how well ments regarding affirmative action flexible work arrangements that help they are working to promote diver- and diversity. employees cope with the work/family sity. dilemma. • Make diversity a bottom-line issue Promotion and Advancement: • Provide anti-sexual harassment and and hold managers accountable for • Make an affirmative effort to identify discrimination training to all employ- achieving results. and develop high-potential employ- ees, and make sure they participate. ees across all lines—racial, gender, • Keep informed about emerging tech- Recruitment: disability, and so on. nological innovations that help bring • Define carefully and accurately the • Enable employees to expand their people with disabilities into the work- job selection criteria, such as the par- potential by making educational and force. ticular skills and abilities required, training opportunities widely available. • Adopt a presumption that reasonable before the selection process begins. • Establish broad-based mentoring pro- accommodations can be found for • Partner with minority associations grams that cut across affinity groups, most issues, ranging from religion to

60 Civil Rights Journal / Winter 2002 racial disparities], instead of ignoring them, take them seri- fourth element is sometimes added: An investigation into ously.” That, he says, is what Coca Cola failed to do, both the company’s efforts to reach traditionally underserved and with an internal report and a Department of Labor analysis. emerging markets. In this case, the goal is not to conduct a As a result, he says, “litigation became the last resort.” market analysis (which the company is presumably much Because the methodological issues are so complex, an better equipped to undertake), but to examine the extent to outside consulting firm is usually retained to conduct the which the company itself has explored the viability of alter- audit. There is, unfortunately, an unusually wide variety in nate profit centers. To maintain privilege, circulation of the the quality of diversity-related consulting firms. A good con- completed audit, with its findings and recommendations, is sulting firm will employ a well-credentialed team of social usually restricted to senior management. psychologists, sociologists, and lawyers with experience in The next step in the process is the development of a civil rights, employment law, and organizational behavior. strategic plan to promote diversity. The audit answered the The best will typically draw staff from the major federal question: “Where are we now [when it comes to diversity]?” enforcement agencies as well as from academia and private The strategic plan follows up by addressing the twin ques- firms specializing in diversity-related issues. tions: “Where do we want to be?” and “How do we get A typical diversity audit consists of three elements: A there?” To put it differently, an audit is the diagnosis; a plan demographic profile of the company by race and gender, is the proposed course of treatment. A strategic diversity cross-checked against income or job rank/category; a survey plan typically consists of the following elements: of employee attitudes and opinions regarding diversity issues 1. A brief, cogent analysis of the business case for diver- and the company’s handling of them; and an analysis of sity as it specifically relates to the company. A finan- corporate policies, systems, and practices that may have dis- cial consulting firm will have different reasons for parate impacts on different groups within the workforce. A undertaking a diversity initiative than a baby food

pregnancy to disabilities. panel, mediation program, and an that they require proper accounting • Conduct a periodic “disability- arbitration program. and self-reporting procedures, and friendly” audit of the physical work • Eschew the temptation to institute a hold management accountable for environment. binding arbitration program as a con- diversity goals. • Develop a system to monitor com- dition of employment. pensation and performance appraisal • Clearly communicate a “no retalia- Other Practices: to ensure that they are discrimina- tion” program and discipline severely • Conduct diversity and harassment tion-free. anyone who violates it. training for all employees, and make training part of the orientation for Termination and Downsizing: Management Commitment and new hires. • Communicate the reasons for the ter- Accountability: • Support the formation of affinity mination clearly and succinctly. • Get the CEO on board and keep the groups, and consult with them in • Minimize the pain of downsizing by CEO on board. No diversity initiative developing diversity-related policies encouraging voluntary departures can succeed without strong CEO sup- and projects. and early retirement. port. • Make a proactive effort to hire minor- • Consider providing grief and anger • Articulate a clear reason why it is nec- ity- and women-owned contractors management counseling immedi- essary for the company to pursue whenever possible. ately after the termination. diversity in the 21st century, and • Promote heritage festivals and diver- • Train managers to follow procedures communicate that vision to all sity-related celebrations. that minimize corporate liability. employees. • Market diversity in-house as a critical • Provide as much assistance to the ter- • Establish clear goals and mile markers component of the company’s ethos. minated employees as possible, to measure performance. • Make company policies, practices, including training and education, job • Tie management compensation, in and goals, as well as employees’ placement, and counseling. part, to success in meeting and diversity-related rights and responsi- exceeding diversity-related goals. bilities, fully known and understood. Alternative Dispute Resolution: • Create an organization capable of • Hire outside diversity consultants with • Consider implementing any or all of ongoing self-evaluation and self-cor- the same care you would hire, for the following: employee hotline, rection on diversity issues. example, safety experts, or financial ombudsman program, peer review • Take steps to increase the diversity of consultants. C R panel, senior management review the board of directors, and ensure

Winter 2002 / Civil Rights Journal 61 5. A clearly defined set of diversity metrics. Measuring Companies have developed progress is essential, and although diversity would a broad range of practices appear to be a relatively nebulous concept and there- designed to promote fore difficult to measure, there are in fact many ways to proceed. The audit should have provided baseline and celebrate diversity. numbers regarding hiring, performance evaluations, They range from aggressive disciplinary actions, complaint ratios, promotion and attrition or retention figures, workplace satisfaction efforts to identify and do surveys, company demographics, market shares, and business with minority- so on. Annual reviews of these figures can help firms identify areas of concern and achievement. owned firms, to cultural 6. Finally, a strategic plan should contain accountability heritage appreciation days. metrics. If diversity is a bottom-line issue, then it should be granted bottom-line priority. That means manufacturer. Articulating why diversity is “mission making managers accountable for their success or fail- critical” helps a company set its priorities. A baby food ure in this area, and rewarding or punishing them maker may be particularly intrigued by the market accordingly. Superior performance merits promotions, potential of Hispanic and Asian immigrants; a white bonuses, awards, and other types of recognition. shoe financial consulting firm may be motivated by political and legal considerations to diversify its exec- Developing a strategic diversity plan is a lengthy, labori- utive labor force. ous process. But most companies that have been through it 2. Recommendations regarding mechanisms, such as find the exercise well worthwhile. “Developing a plan forces affinity groups, vertical representative committees, or a company to think through its priorities and come to grips Web-based anonymous suggestion boxes, for involving with the issues raised by diversity,” says consultant Tyler employees in the diversity initiative and incorporating Vance. “The process itself throws up a lot of issues: Who their concerns and ideas. This enables continuous feed- gets consulted, who gets to make the decisions.” Vance cau- back and response, giving managers the opportunity to tions against outsourcing too much of this work: “Compa- adjust and improve on their performance. nies are sometimes tempted to hire an outside consultant to 3. Proposals for institutionalizing the diversity initiative draw up a diversity plan for them. And a competent con- through the creation (or strengthening) of a diversity- sultant can come back with an itemized list of 15, or for that related office at the executive level with well-defined matter 150, recommendations. But a really good consultant responsibilities and powers. Chief among these pow- can do something more important: Help the company ers should be the ability to investigate, assess, meas- internalize the process of change.” ure, and make recommendations directly to the chief Vance acknowledges the difficulties inherent in this operating officer. A second and equally important approach. “I think there’s a certain amount of trepidation function of the office should be to act as a clearing that diversity initiatives will undermine the leadership, that house for companywide practices and policies, such as it’s opening a Pandora’s box for airing resentments or griev- internal marketing, minority internship, training, or ances.” That fear is generally overblown, says Vance. But to mentoring programs, that promote diversity. make sure that the conversation doesn’t veer off track, the 4. A list of clearly defined goals, based on existing out- key is to be clear about what’s at issue: “The question is not come “gaps” discovered through the audit, setting forth how to become a more fair, or just, or compassionate organ- the reasons for their adoption and determining what ization. The question is much more practical: How can we resources and commitments are necessary to accom- leverage the diversity of our organization to our competitive plish them. Note that it is not enough simply to set advantage? How can we make sure that all of our employ- goals; to say, for example, that mid-career female attri- ees’ human capital is being fully utilized?” tion rates should drop by 25 percent over the next five Of course, answering that question requires more than years, or that the market share for a new demographic just a set of principles. It requires tactics, policies, and pro- base should increase by 50 percent. By themselves, cedures. These will be discussed in the next section. these are merely wishes. The plan must clearly enunci- ate how these goals are to be achieved. The goal of low- A Collection of Tactics ering attrition rates of mid-career women might be A good diversity program embodies values that are consis- reached through providing various types of maternal tently upheld and regularly reaffirmed. But it is a hollow assistance, such as in-house day care facilities, flexible shell unless it follows through on its commitments with hours, or the creation of part-time “parental” tracks. day-to-day practices that produce real-world results. The For items that are not clearly gaps or problems, the goal practices that follow are drawn from actual companies that should be continuous monitoring and improvement. have been at the forefront of efforts to promote diversity.

62 Civil Rights Journal / Winter 2002 For the sake of analytical convenience, they are sorted into mative action, even as older forms of affirmative action six categories: Recruitment and Hiring; Promotion and come under increasing judicial scrutiny. “We understand Career Advancement; Terms and Conditions of Employ- the need to change, and we are,” says David Bullard, of ment; Dispute Resolution; Management Accountability; Amex International. “At the same time, we don’t want to and other, system-wide practices. But many of the ideas feel compelled to act because of court decisions. Making an behind them are applicable across the board. Indeed, there effort to increase the diversity of the applicant pool and is something of a new consensus emerging: The best prac- candidate slate is the best way we’ve found to balance merit tices for diversity are those that are not specific to any one with fairness in our hiring decisions.” group, but that promote opportunities for all. As Maria Among the efforts now underway to increase the diversity Johnson, head of diversity for Fannie Mae, points out, of the applicant pool are internships and work/study pro- “Instead of special programs, the focus should be on help- grams, community outreach efforts, and aggressive recruit- ing everyone reach their potential and achieve their ing drives among nontraditional employee groups. At the dreams—whether it’s home ownership, completing college, Bureau of National Affairs (BNA), a publishing company or simply knowing that there is an emergency day care facil- based in Washington, DC, that specializes in legal informa- ity available.” tion services, representatives attend numerous job fairs spon- sored by minority associations and colleges. The BNA spon- Recruitment and Hiring sors its own scholarship program, which provides funds to Many employers have found that it takes a conscious effort to students at minority universities and gives them the oppor- hire a diverse workforce. If they don’t make the effort, they tunity to work as interns. The BNA has also developed an end up with a workforce that is de facto segregated by job editorial traineeship which grooms minority staff with description, with whites, Asian Pacific Americans, and a potential to become professional journalists and editors. sprinkling of African Americans constituting the professional staff, and blacks and Hispanics among the clerical and blue- Promotion and Career Advancement collar workers. How and why does this happen? Well, in part, Many of the barriers that act against hiring minorities also it reflects disparities in professional and academic achieve- militate against their promotion. In-group favoritism (the ment. There are proportionately fewer Hispanic lawyers than old-boy network), the Pygmalion effect, the proportional there are Hispanics among the general population. It would dearth of qualified candidates, inadequate knowledge about be mathematically impossible for every law firm in California where to advertise openings, all play a role. Many minori- to have a number of Hispanic partners on staff proportional ties in corporate America feel that they don’t have access to to their population in the state. the same informal mentoring that helps their white col- But there are other reasons as well. Think about how a lot leagues climb the corporate ladder; that they don’t get the of recruiting takes place, particularly at smaller organiza- honest performance evaluation and searching feedback that tions: So-and-so’s nephew is looking for a job, the uncle can contribute to their growth; and that they don’t get the mentions it to a buddy of his at the bar, the buddy knows opportunities to take on risky or high-profile assignments about an opening at the plant where he works, and vouches that lead to senior positions. for the kid to his supervisor. The next day, the nephew gets Fannie Mae is a mortgage financial services company called in for an interview. If we lived in a completely inte- based in Washington, DC, and one of the few Fortune 500 grated society, this sort of practice wouldn’t result in racial companies with an African American CEO. It has developed or ethnic disparities. But we don’t: The nephew, the uncle, an extensive mentoring program consisting of three ele- and the buddy are all likely to be of the same ethnic group, ments: A speaker series, which seeks to expose employees to and a process that did not involve anyone making con- positive role models within Fannie Mae and beyond; a men- scious, intentional efforts to discriminate ended up having tor/protege program, which provides one-on-one coaching a disparate impact. between senior and junior managers; and a Buddy program, There are other seemingly neutral practices that can also which is designed to pair new hires with established ones to result in disparate impacts. Just as many whites might not help familiarize them with the company’s workings. Partly be comfortable applying for a job at, say, Ebony magazine, so as a result, says senior workforce manager Maria Johnson, many people of color may feel uncomfortable or reluctant Fannie Mae is among the nation’s leaders in corporate to apply at, say, a local, family-owned hardware store. Even diversity. “If you compare our employment rates to the rel- a well-intentioned employer seeking to diversify its work- evant labor poor, we far exceed those standards at every force may not know where to advertise or what accommo- level. Of our 168 officers, the most senior executives on our dations can be made to provide for qualified individuals staff of 4,800, 23 percent are minority.” with disabilities. Mentoring has proven to be among the most promising But increasingly, firms are not content to leave it at that, of today’s best practices. Harvard Business School professor and are making conscious efforts to increase their potential David Thomas, who has conducted the most extensive applicant pool. In fact, more and more companies seem to investigation to date of successful minority executives, agree about the necessity of engaging in this kind of affir- continued on page 66

Winter 2002 / Civil Rights Journal 63 An Interview with Cyrus Mehri

Having spearheaded discrimination lawsuits against Texaco and Coca Cola that fetched record settlements, Cyrus Mehri, now 40 years old, is one of the nation’s leading employment discrimination lawyers. But it’s not the sums he’s won for his clients that have most impressed observers; rather, it’s the broad institutional changes he’s helped bring about at these companies. In the Coca Cola case, for example, the changes include the creation of an outside seven-member independent task force mandated to ensure compli- ance with the settlement and to oversee Coca Cola’s diversity efforts. Now at Mehri & Skalet, PLLC, a Washington, DC-based firm, Mehri spoke with CRJ in late October 2001. More information on Mehri is available at the firm’s Web site, www.FindJustice.com.

CRJ: Let me begin with a very broad tronic posting, where a job supposedly homework on their own. And they had question. Do you see the cases gets announced and you can compete demonstrated that there were prob- you’ve litigated so far as exceptions for it. But the reality is that whole lems. They’d prepare reports showing or as symptoms? In other words, classes of jobs are exempted from the how African Americans were underrep- how severe a problem do you think posting system. Or there are ways to resented, how they were locked out of racism and discrimination are in cor- circumvent the posting requirement, the real power centers of the company. porate America? by tailoring the job description so nar- But senior management responded by rowly that only the preselected candi- saying things like, “What are you guys, Mehri: These aren’t problems that are date is qualified. Or you’ll have a secret a bunch of black panthers?” They’d specific to any one company. What cor- system, what’s called a high-potential take the reports and stick them in the porate America views as its best prac- list of fast-track executives, which exists drawer. And that just shut down the tices in diversity fall far short of what side-by-side with the explicit system. dialog, so litigation became a last fairness requires. We’re ready to take on And the people drawing up that list are resort. And that’s when we were called any company in the country because all white males. So what in fact is hap- in. we believe the problems are not iso- pening is the same tap-on-the-shoul- lated to Coca Cola or Texaco. Corpo- der, good-old-boy network that pre- CRJ: What kind of impact do racism rate America itself has a problem with vents people from competing on their and discrimination have, both on the systemic discrimination. merits as existed before. individual and on the company, gen- Another problem area is in compen- erally? CRJ: Expand on what you mean by sation. What tends to happen is that “systemic discrimination.” companies give an undue discretion to Mehri: What we’ve seen is that [black] managers and fail to examine how employees are extremely loyal to their Mehri: Let’s take it by topic or corpo- compensation is being distributed and company, extremely proud to be part rate structure. There’s a glass ceiling whether there are any inequities. They of it. They may have gone further than where African Americans are brought in take the ostrich approach. High-tech any of their family members in previous the door, but not allowed to get up to companies distribute stock options that generations, so they have a sense of the higher echelons. Name the best- make people millionaires—or at least “Who am I to complain?” But then known companies in America and once they used to make people millionaires they’ll see that subordinates are mak- you get to the executive committees —and then fail to really look at how ing more money than they are, or really running these companies, you’ll their stock options are being distrib- they’ll see African Americans being see there’s virtually no diversity there. uted. And if they do look, they don’t shown the door one after another, and The second issue is what we’ve coined take corrective action. the hurt goes far beyond the feeling of the “glass wall” problem, where we see being out of pocket. It has a profound that the few African Americans who CRJ: Describe what the legal climate and disillusioning impact, a demoraliz- have reached the higher echelons are was like when you began doing this ing impact. Part of the emotional strug- channeled away from the power posi- work. gle is that the discrimination is so sub- tions and profit centers. So there’s a lot tle. It takes a long time before people of camouflaging of the problem by lay- Mehri: We started doing this work in begin to see it as systemic. It’s not until ing out EEO-1 report numbers. But if 1993, at the start of the Texaco case, we meet with people, until we have 15 you look behind these reports, you’ll when there were few private firms or 20 potential class members in the see that there’s still widespread discrim- enforcing the law. From the late 1970s same room, that they realize that what ination. How does this happen? One to the early 1990s, there was a 90 per- is happening to them is happening to problem we’ve seen is a lot of compa- cent decline in the number of employ- others, and they understand the more nies either don’t have a job-posting sys- ment class action cases generally. So we sweeping nature of the problem. tem or have a system that’s really a faced a situation where many of the The irony is that it’s really holding farce. So they’ll have this elaborate elec- plaintiffs had been forced to do their back these companies, because they

64 Civil Rights Journal / Winter 2002 are missing out on world-class people. The other thing we’re seeing is more grams, to help people develop profes- African Americans and other minorities and more unfairness in the way testing sionally. And finally, they should do a are disproportionately leaving corpo- procedures are handled in the hourly much better job of gathering data and rate America because they end up feel- workforce. So you might have a test internal reporting. They need to do a ing like the system is unfair, that they that determines how you go from much better job of monitoring their are being locked out. And all they are being an hourly employee to being an compensation, evaluation, and promo- asking for is an equal chance to com- electrician, and that rating is worth $3 tion systems. pete. or $4 an hour—a tremendous eco- nomic difference. And what we’re find- CRJ: Tell us a little about the recent CRJ: Many people would say, “Look, ing is that these tests are antiquated, study, “Double Standard on Appeal: it’s the 21st century. The Archie they’re decades old, they’re not job An Empirical Analysis of Employment Bunkers and Bull Connors of the related, and they’re having a huge dis- Discrimination Cases in the U.S. world are long gone. How is it that parate impact. Then we’re finding Courts of Appeals,”1 you commis- these problems still remain?” instances where there’s a kind of sioned on how employment discrim- closed-door cheating to help the white ination cases fare in the federal Mehri: I think there are different prob- employees pass. And this battle, over appellate courts. lems in the white-collar and blue-collar paper-and-pencil tests, is going to workforce. In the white-collar work- become a new old frontier, you might Mehri: This was a study conducted by force, what you see is that decisions say. A new frontier for us, but a battle very distinguished, esteemed scholars about compensation and promotion that was supposedly fought and won from Cornell Law School, and what are ostensibly based on the evaluation over a generation ago. they found, by looking at the hard data system, but none of these companies over a 20-year period, was that appel- have really gone out and validated CRJ: Say I’m the CEO of a Fortune 500 late courts seem to have a double these systems to make sure they’re fair. company, and I come to you and say: standard for employment discrimina- They’re based on giving undue discre- “OK, how do I improve, how do I tion cases. When a plaintiff appeals, he tion to managers who set different cri- ‘Cyrus Mehriproof’ my organiza- or she has no more than a 5 percent teria for each person, and they’re not tion?” chance of reversing the defendant’s vic- linked back to a careful job analysis tory at trial. But when a defendant based on the actual content of each Mehri: (laughs.) You know, I’ve never appeals a plaintiff’s trial victory, the person’s job. been asked by companies to come in, defendant has a 43 percent chance of What we’ve found in company after but if I were I could help turn them reversal. Only prison cases fare worse. company is that the evaluation systems around. Let me give you a list, but in no The gap is so huge it cannot be may have eight categories, with a lot of logical order. First, I’d have a genuine explained as anything other than bias business terms, but they basically boil job-posting system that works and goes against the employment plaintiffs. down to handing out “A”s and “B”s as far up the food chain as possible. In What makes this so astonishing is that and “C”s, like a school report card. And terms of pay grades, everything but the plaintiffs have already overcome all kinds African Americans are overrepresented most senior management positions of obstacles to prevail at trial, and these in the “B”s. They get underrepresented should be listed. I would not have any are very fact-intensive cases. So the in the “A”s and “C”s. So they give secret promotions, any secret high- results of the study suggest that federal African Americans just enough of a potential list. And if you are going to courts use this deference to court find- grade to keep people happy or paci- have a fast-track list be very sure to ings as a shield for winning employers, fied, but not enough of a grade to communicate it, and what the criteria but toss that shield away when it comes advance. So there is something terribly for selection are. No more closed-door, to reviewing employee claims. wrong with how corporate America is golf-buddy selection process. Sadly although this report was handling its evaluation systems. I’d also make sure that the boards of widely covered in the press, we haven’t directors of these companies take a had an adequate response from the CRJ: And what is happening among more active role. Make sure that they judiciary. In fact, we have yet to receive the blue-collar workforce? receive reports, and use diversity as a any kind of thoughtful explanation at factor for new board member selection. all, and you can print that. C R Mehri: There are a couple of issues So start from the very top. I’d also link happening there. One is that there is a managers’ compensation to how well 1 Theodore Eisenberg and Stewart Schwab,“Double Standard on Appeal: An Empirical Analysis of Employ- dramatic increase in the number of they do in EEO performance. That will ment Discrimination Cases in the U.S. Courts of hostile work environments in the man- go a long way. Companies should have Appeals,” July 16, 2001, accessed at www.findjustice. ufacturing center. more mentoring and affinity group pro- com/ms/civil-just/schwab-report.htm.

Winter 2002 / Civil Rights Journal 65 argues that “people of color who advance the furthest [up they need to improve their own lives. “We think there’s a the corporate ladder] all share one characteristic—a strong compelling productivity case to be made for these pro- network of mentors and corporate sponsors who nurture grams. They pay for themselves in terms of increased their professional development.” employee productivity, loyalty, and retention.” Affinity groups are more controversial. Most large com- IBM has pioneered workforce accommodations for panies accept and tolerate them; a number actively promote disabled workers, and through its engineering innova- them and seek out their input; and a few don’t allow them tions, made it possible for many thousands of people at all. Those that don’t argue that affinity groups can divide with disabilities, both within the company and without, employees and fracture a company’s identity. They worry to lead fuller, more productive lives. From architectural that affinity groups may become advocates for specific indi- modifications, to electronic bulletin boards for the mobil- viduals and grievances, and may even lead to adversarial ity impaired, to telecommunications devices for the hear- relations with management. Other companies with more ing impaired: Many of the devices that have become positive experiences of affinity groups report that there is almost routine forms of accommodation were first devel- little tendency for them to lead to division. And even when oped at IBM. groups do become advocates on specific issues, this can lead to a strengthened organization. May Snowden of Kodak Alternative Dispute Resolution says that it is “okay if differences emerge” under employee Alternative dispute resolution (ADR) refers to those policies network groups. “Differences make for a robust culture, for and practices that help bring about an early, satisfactory, the complexity and chaos that are marks of strength.” and fair resolution to complaints regarding employment discrimination. They can be as simple as talking to the supervisor about unwanted attention from a colleague, to In a nation that peer mediation and mandatory arbitration.5 is becoming Among the strategies companies have developed, one feature stands out: The creation of multiple and redundant increasingly places for voicing and resolving complaints. One company, multiethnic, and in for example, offers the option of opening a dialogue with a world that is ever the supervisor, the supervisor’s supervisor, or the human resources department, or talking directly with an ombuds- more interconnected, man. Another company offers five options: Dialogue with diversity has become the supervisor or a higher level of management, an employee hotline, a conference with a company represen- an inescapable tative, mediation, or arbitration. business reality. Other Best Practices Companies have developed a broad range of practices Terms and Conditions designed to promote and celebrate diversity. They range The minimum legal requirement that firms must meet is from aggressive efforts to identify and do business with equal pay for equal work.4 As obvious as that principle is minority-owned firms, to cultural heritage appreciation today, it was not so obvious even a generation ago, when it days. Fannie Mae, for example, recognizes and supports an was assumed, for example, that men should be paid more array of affinity groups, from Native American to Gay and because they “had families to raise.” In the meantime, other Lesbian. It draws on these groups to sponsor an annual, issues have emerged: The workplace has to develop family- weeklong diversity celebration, and it recognizes, through- friendly policies, religious and disability accommodations, out the year, heritage observance months with programs and anti-sexual harassment and discrimination training and celebrations that give employees the chance to learn and procedures. How well a company cares for its employ- about other cultures, and to share aspects of their own. ees above and beyond meeting the legal minimum plays a United Parcel Service (UPS), the package delivery service, significant role in employee satisfaction, retention, and pro- has a Community Internship Program, which places senior ductivity managers in communities of need. More than 1,200 senior Fannie Mae is another leader in worklife balance issues. managers have participated in the program since its incep- It offers tuition reimbursement for employees pursuing col- tion in 1968, at a cost of $10,000 per employee. For four lege degrees, emergency day care, five days’ annual family weeks, managers work in distant cities, becoming immersed leave, on-site physicals, and—reflecting its primary business in cultures far from their homes. They work in homeless mission—up to $16,000 to help employees buy their first shelters, mentor inner-city youth, aid immigrant farm home. These programs help all employees, says diversity workers, build schools, and visit the home-bound. This director Maria Johnson, but particularly those at the lower experience gives executives the opportunity to “walk in end of the pay spectrum, by giving them access to the tools another’s shoes,” building sensitivity, cultural understand-

66 Civil Rights Journal / Winter 2002 ing, and social responsibility. But the program is not simply charitable, insists Rick Boehler, UPS’ director of workforce diversity. It also helps attune UPS executives to the increas- ingly complex needs of a diverse workforce and consumer Zero Tolerance: base. “They’re amazed at how much they learn,” says Boehler. “They come back and nearly universally say the A Word of Caution experience has made them better managers.”

Management Accountability t is tempting, in the face of potential lawsuits Undergirding all of these policies and practices is manager and the political climate that exists today, to commitment and accountability. If managers aren’t com- Iannounce a “zero tolerance policy” with regard mitted to promoting diversity, and if they are not held to discrimination and harassment. Imposing a accountable for the results, then diversity tends to become zero-tolerance policy gives evidence that manage- an optional, relatively unfocused effort that produces spotty ment takes the issues seriously, and seems to elim- results. Many companies these days are tying executives’ inate the possibility that disparities in treatment compensation packages to how well they perform on diver- will arise, since every incident will receive the same sity-related matters. Often, the total amount is small: 5 per- (severe) response. cent or so. But the effect is to institutionalize and regularize The problem with these policies is twofold. First, a process so that diversity isn’t neglected. a great many incidents are marginally or even Fannie Mae is once again a leader in this area, with an questionably offensive, and inflexibile responses Office of Diversity at the vice-presidential level reporting can be more damaging than helpful. If, for exam- directly to the president and chief operating officer. The ple, someone repeats a slightly off-color joke heard office’s mission is to help foster a culture that maximizes on Seinfeld or Letterman, says something self-dep- and supports diversity at all levels, monitor compliance, recating about his or her group, or simply dis- operate the dispute resolution process, and administer the cusses recent political scandals, some people corporate mentor program. It also works with the human might take offense. A zero-tolerance policy would resources department to conduct assessments of the culture, preclude anything but a severe reaction, one that and the training department to develop diversity training can seem disproportionate to the “crime.” There is programs. Fannie Mae’s Diversity Advisory Council is a no possibility of tailoring the response to the sever- standing committee of senior management and representa- ity of the incident. tives of employee support groups that maintains commu- The second problem with zero-tolerance poli- nication and ensures that the company remains responsive cies arises from the first. If a zero-tolerance policy to the needs of all its employees. isn’t enforced in a rigorous and literal way, because Eastman Kodak’s global reach means that diversity is not in some instances it leads to absurd overreactions, merely a national issue, but a truly global one. The CEO has the policy as a whole is undermined. A policy, once committed the company to increase to 40 percent the per- adopted, must be consistently applied. Anything centage of women, minorities, and non-U.S. nationals else leads to greater legal exposure, because it nominated as succession candidates to key positions. It opens the company to charges of picking and holds its managers responsible for reaching these goals choosing when to apply its own stated standard. through performance ratings, and evaluates them on their A far better approach is to have the company’s ability to build and maintain a diverse workforce and response match the severity of the offense. If it encourage employees to develop their talents. must be given a label, call it a “Rapid Reaction” policy. This policy should be explicit, transparent, The Human Factor and communicated clearly and frequently to employees. If incidents arise, they should be dealt Thus far, the focus has been on the firm, on what companies with expeditiously and fairly, and there should be as institutions can do to maximize the benefits and mini- mechanisms in place to protect the rights of the mize the risks of diversity. This decision to put the firm first person making the accusation as well as due was deliberate: Too many diversity initiatives focus exclu- process for the person being accused. Such a pol- sively on the individual. They assume that if the individual icy should be based on principles of inclusiveness manager or executive is made conscious of his deficits, he and sensitivity. But it should also presume that (and it is usually assumed to be a he) will cease to behave in employees possess an inner fortitude and propor- ways that unfairly limit the potential of minorities and tionality. Respecting diversity does not entail sur- women. The problem with this perspective is not that it is rendering one’s judgment or good sense. false, but that it is insufficient. No firm can rely simply on changing the hearts and minds of its employees. If it is to

Winter 2002 / Civil Rights Journal 67 proactively capitalize on the nation’s diversity, it must undertake. They are not a substitute for other diversity develop a broad range of policies and practices to help measures (such as a minority contractor program), but they ensure that today’s workplace works for everyone. can be an important complement to them. That is not to say, however, that individuals do not have Perhaps the first quality firms should seek to develop an important role to play in successfully addressing diver- and reward in their employees regarding diversity is the sity issues. This section examines some of the knowledge, ability to accept, and to be comfortable around, human skills, and abilities that firms should seek to inculcate in differences. It may seem that this is too amorphous a qual- their employees to further their success at managing diver- ity to foster, but that is not the case. Many of the day-to- sity. These skills can be taught through training, orienta- day problems that arise from diversity come about because tion, and development programs; they can be emphasized of the fears, anxieties, and tensions that people feel in in regular corporate communications; and they can be dealing with those who are different from themselves. It is exemplified by actions that the firm and its leadership these emotions that hinder more relaxed social relations

Laws Governing Workplace Discrimination

here is a patchwork of laws gov- for a truck driving position is told she will allowed to cast only females for female erning workplace discrimination. not get the job because of her gender. leads; a Kosher delicatessen is allowed to T But at the federal level, three are Evidence of discrimination can also be hire only Jews to serve as butchers. On central: Title VII of the Civil Rights Act of indirect, as when an individual in a pro- the other hand, an employer may not 19641 prohibits discrimination based on tected class is turned down, and subse- turn an applicant down because of cus- race, color, religion, sex, and national ori- quently the employer hires some other tomer preferences; for example, a belief gin; the Age Discrimination in Employ- nonminority applicant with lesser qualifi- that whites won’t buy from a black sales- ment Act (ADEA)2 prohibits employment cations. man. (An interesting case now working discrimination based on the fact that the Adverse impact results from policy that through the courts involves medical part- employee (or job applicant) is 40 years or has the effect of discriminating against nerships that preferentially hire female older; Title I of the Americans with Dis- individuals in a protected class even if the gynecologists, because, they say, more abilities Act (ADA)3 prohibits employment employer’s reason for the different treat- and more women are requesting female discrimination against qualified individu- ment is not based on protected status— doctors.) als with a disability, “who, with or with- unless the employer can prove that the In 1977, a notable addition to the out reasonable accommodation, can per- policy is required by business necessity antidiscrimination laws occurred when form the essential functions of the and is significantly related to the job’s the federal courts found sexual harass- employment position.” (Two other laws, requirements. An employer, for example, ment a form of discrimination prohibited the Equal Pay Act of 19634 and the Preg- cannot require that all applicants for a under Title VII of the 1964 Civil Rights nancy Discrimination Act of 1978,5 are loading dock position be young men. It Act. There are two principal forms that much less frequently invoked.) can require that applicants regularly be sexual harassment can take. The first is The first and third of these cover gov- able to lift 60 pounds, even if this policy the “quid pro quo,” where submission to ernment and private sector employers results in disparate treatment of female the sexual advances of a superior is a term having at least 15 employees; the second, and elderly applicants. Height and weight of condition of employment. The second at least 20 employees. In addition, most standards, fluency in English, arrest and is the so-called hostile work environment, states have laws that duplicate, reinforce, conviction records, and so on, are all where the employer’s offensive sexual or extend the federal laws. The primary examples of neutral criteria that have conduct unreasonably interferes with the aim of these laws is to ensure that all been found to have an illegal adverse victim’s job performance. Catalyst, a cor- employment-related decisions (e.g., hir- impact by the courts, when employers porate women’s research group, says that ing, promoting, and termination) are have proven unable to demonstrate that 95 percent of harassment cases involve a made without regard to the employee’s they are necessary for successfully per- hostile environment. (It is an urban myth, (or applicant’s) status as a member of one forming the job. incidentally, that a single, unfortunate or more of the protected classes. One notable exception to Title VII and remark can lead to a successful lawsuit. Illegal differential treatment is typically the ADEA is the so-called bona fide occu- Courts determine the psychological classified as being either intentional or pational qualification (BFOQ). This excep- harm, severity, and frequency of the adverse-impact. Intentional discrimina- tion provides for those instances in which offense, and whether it is physically tion occurs when the employer’s motive it is an objective fact that members of threatening, before proceeding.) is discriminatory. Evidence of motive can protected classes cannot perform the job The Supreme Court has recently eluci- be direct: for example, when an applicant in question. For example, a film director is dated several steps employers can take

68 Civil Rights Journal / Winter 2002 among groups, and that can trigger or exacerbate conflict. they were doubly accused, first of being prejudiced, and The best way to alleviate these is to create an environment then of trying to cover it up. The result could feel like a in which the fact of human difference is acknowledged Salem witch trial. and esteemed. E pluribus unum can be a corporate motto as There is a better way. Rather than trying to confront and well as a national one. This ethic needs to be woven into expose the individual’s latent prejudices, the company the corporate culture, in everything from the art it places should offer a simple, clear explanation of how prejudice in the entrance to the CEO’s communications to staff. operates and of the subtle ways that it may affect one’s A second trait companies should aim to foster in their judgment. This sort of presentation can be done in a train- employees is an understanding of the nature of prejudice ing session or as part of the new hire orientation. It and discrimination. This needs to be done carefully if it is shouldn’t focus on accusation; it shouldn’t assume the not to backfire. Too often, in the past, white men were worst of anyone. The goal should be to invite reflection: simply accused of being prejudiced; if they tried to deny it, “How might I be affected by these quite natural and unfor-

to prevent sexual harassment claims. consciously prejudiced. This might instead that the company failed to • First, they can develop and dissem- be the case, for example, with a take action that it should have inate a written policy against supervisor who denies an Asian taken. It is no exaggeration to say harassment. American woman a promotion that much of employment law is • Second, they can institute an effec- into management because she concerned with the two issues tive complaint policy, with a mech- doesn’t seem to him to be “man- raised by this sort of claim: the anism allowing employees to agement material.” attribution and extent of liability bypass the supervisors who may be • Small groups acting intentionally for acts of omission, and the con- harassing them. against members of a minority ditions under which disparities can • Third, they can investigate com- group. This would be the case, for be taken as evidence of discrimi- plaints quickly and thoroughly and example, if a group of coworkers nation. take appropriate disciplinary were harassing a gay colleague action. with the tacit approval of their Probably no other area of employ- • Fourth, they can provide anti-sex- immediate supervisor. ment law provokes quite as much con- ual harassment training to their • The organization can establish cern as affirmative action. Intended to employees, teaching them what practices that have a negative remedy present effects of past discrimina- sexual harassment is and what to impact on certain groups, even tion, it was originally promoted by Presi- do if they believe that they are though the practices are appar- dents Kennedy, Johnson, and Nixon.6 being harassed. ently neutral and were not created However, it has come under increasing with any intent to discriminate. criticism for favoring certain groups at the The Equal Employment Opportunity The courts tend to view these alle- expense of others. Anti-affirmative action Commission (EEOC) is the primary gations with ambivalence. measures have passed in California and agency tasked with enforcing the • Finally, and most controversially, elsewhere, and the Supreme Court, in nation’s employment antidiscrimination the organization can fail to take several recent decisions, has imposed laws. For years, it suffered from poor action to address one or more of increasingly greater limitations on affir- management and inadequate funding, these problems, as manifest by mative action programs.7 C R resulting in a large backlog of cases, slow continuing disparities in outcome processing time, and poor customer among different groups. This 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § service. Its performance has improved argument is by far the most com- 2000e-2 (1994). significantly over the past decade; how- mon in employment law because 2 Age Discrimination in Employment Act, 29 U.S.C. § 621 (1994). ever, there is still considerable progress it assigns responsibility (and thus 3 Americans with Disabilities Act, 42 U.S.C. § 12112(a) to be made. liability) to the organization rather (1994). Most discrimination complaints allege than to individuals within it; at the 4 Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (1994). 5 Pregnancy Discrimination Act of 1978, 42 U.S.C. § one or more of the following kinds of same time, it doesn’t rest on a 2000e-(k) (1994). problems: finding that the company pursued 6 Stephen Cahn, “Stephen Cahn on the History of Affir- • Isolated individuals acting without explicitly discriminatory practices mative Action,” 1995, accessed at aad.English.ucsb. edu/docss/Cahn.htm. the sanction of the organization in (after all, few organizations today 7 Michael Fletcher, “Affirmative Action Tops NAACP ways that are intentionally or sub- adopt such policies), but maintains List,” The Washington Post, July 14, 1998, p. A3.

Winter 2002 / Civil Rights Journal 69 tunately universal tendencies?” There is no guarantee, of frequent white-owned businesses.) Nor do members of the course, that those most in need of this sort of reflection will majority always understand the informal benefits that actually undertake it, but fostering a corporate culture in come from “belonging,” such as access to the grapevine or which the nature of prejudice and stereotyping are clearly honest performance feedback. understood can go a long way toward eliminating them. On the other hand, many women and minorities don’t A related trait that companies can promote is ambiguity understand how difficult that imaginative leap is. Because tolerance. This psychological term refers to an ability to live they experience discrimination daily, they don’t under- with uncertainty; to respond to ambiguous, complex, or stand how the majority can fail to “get it,” and they multifaceted situations and people without rushing to judg- wrongly conclude that this failure is a symptom of some ment. It’s what ordinary people call having an open mind. deeper dishonesty or deliberate decision. The fact is, how- People who are close-minded experience ambiguous situa- ever, that most people understand only what they have tions as threatening. Feeling threatened, they respond with experienced; what they haven’t experienced isn’t emotion- hostility toward the person provoking that uncertainty, ally available to them. Here again, a non-threatening, non- even if that person hasn’t done anything to harm them. judgmental educational approach is the wisest course. Too That is why we so often say of group hatred that it is “irra- often, in the past, the approach has been to berate the tional.” The person doing the hating isn’t responding to majority for their failure to “get it”; the impact on their any actual threat, but to the perception of a threat induced consciousness has been temporary, at best. Far better to by his or her own inability to deal with ambiguity. Again, educate through personal testimonials, stripped of rancor. this is not a skill that can be easily taught, in the way, for Clear, honest accounts of the challenges and occasional pain that are part of the daily experience for the many who are not in the majority can deepen the consciousness of those who are far more than more aggressive approaches. The fact that there is a Close cousin to this emotional understanding is a solid business case for greater factual knowledge of the realities concerning race and diversity. This knowledge can take three forms: First, diversity can be a a greater knowledge of the history and current realities of compelling argument groups that are traditionally included under the rubric of diversity. A recent poll found that a large majority of to skeptics who are whites believe that whites and blacks enjoy equal unimpressed with the incomes, economic opportunities, and educational attain- moral arguments for ment. This might be said to represent a clear triumph of ignorance over prejudice. It means that most whites don’t diversity. believe that the majority of blacks are poor, welfare-prone, and so on. On the other hand, it also means that many whites simply don’t know the facts about race today. example, that one might train people in handling a new Clearly, a deeper knowledge about the ongoing inequali- photocopy machine. But it is a trait that can be esteemed, ties that mark relations between groups, and an awareness “talked up,” made part of the corporate ethos, and demon- of the demographic transformation now underway, can strated by example among the leadership. lead to a heightened appreciation for the need to proac- One other “emotional skill” that companies can foster tively address these issues. is an appreciation for the challenges and difficulties that Second, knowledge about the risks and benefits of other groups face, an ability to imaginatively project one- diversity can generate a greater level of commitment to self into the shoes of another. When it is said of whites, or change. The fact that there is a solid business case for of men, for example, that they “just don’t get it,” what is diversity can be a compelling argument to skeptics who being expressed is a frustration that they don’t appreciate are unimpressed with the moral arguments for diversity. the work involved in fitting into a culture dissimilar to Third, anyone who works closely with people of another their own; the stress of being seen as a “representative” culture, race, gender, and so on, particularly in a manage- rather than as an individual; the effort to make others feel ment role, would do well to be attentive to them as indi- comfortable; the need constantly to be on alert against viduals. Susan Fiske, the Princeton psychologist, has noted behaving in ways that might be interpreted stereotypi- that powerful people pay less attention to subordinates cally; and the wearying effects of rarely knowing how because they don’t depend on them, have other things on much race or gender are actually influencing the situa- their mind, and may have a strong need to feel dominant. tion. Is this store clerk being rude to me because I’m black “Stereotyping and power are mutually reinforcing,” says or because he’s unpleasant? (Whites may wonder the same Fiske, “because stereotyping itself exerts control, maintain- if they receive bad service from blacks, but they visit far ing and justifying the status quo.” Thus, encouraging man- fewer black-owned or -managed businesses than blacks agers to be attentive to their subordinates as individuals

70 Civil Rights Journal / Winter 2002 can diminish a situational tendency to view them as margins of our society generally don’t make a particularly (stereotypical) members of a group or category. lucrative market or attractive labor force. The role of the organization in fostering a climate of Al Zollar, the general manager for IBM’s Lotus Software respect and mutual consideration has been touched on at division, and as such one of America’s leading African Amer- several points but needs to be made explicit. As Fiske has ican high-tech executives, disagrees. “I go to schools and ask written, “an organization can make certain values salient, the kids how much they think I make. They tell me $20,000 can encourage the constructive sides of people’s self-con- or $25,000 year, because that’s what their expectations are. cepts, can promote norms of fairness, and so on. Con- They don’t know that you can be an African American and versely, an organization can ignore these issues and let the make it.” By giving young people an attainable vision of suc- powerful take the easy way out, not bothering to pay much cess, Zollar and other nontraditional executives give back to attention to the powerless.” The importance of local or their communities the most precious resource of all: Hope. organizational norms is that they encourage or inhibit a “Thanks to Martin Luther King and people of my father’s climate in which individuals can be harassed or discrimi- age, my generation has the opportunity to succeed in ways nated against. Harassment or discrimination is often a that past generations could only dream about. We have an symptom of an organizational rather than an individual obligation to seize that opportunity, both to redeem the past failing. What may seem to majority managers to be inap- and to help forge a brighter future.” C R propriate and isolated behavior all too often feels to minor- ity and women employees like the visible tip of an iceberg of discriminatory practices tacitly condoned from the top. References That is one more reason why it is not enough to let the 1 If 100 classmates graduate from high school, of whom 90 are white, organizational “ship” drift on matters related to diversity; it and 110 freshmen enter, of whom 95 are white, then the number of must be consciously steered away from the iceberg. net entrants to the school is 10. Of these, five are white and five are Aside from valuing and modeling certain habits of the nonwhite. (In other words, the school has five more whites than it heart and mind, organizations can coach their employees did, and five more nonwhites.) Thus, 50 percent of the net entrants on a host of practical skills that will improve their diver- to the school are nonwhite, even though nearly 87 percent (95/110) sity management. Most of these skills are part and parcel of the entering class is white. The Hudson Institute’s 15 percent fig- of good management techniques: Knowing how to listen, ure simply represents a fact about the composition of the growth of give feedback, foster constructive conflict, and mediate the workforce, not about the workforce as a whole. disputes are not skills that are specific to managing diver- 2 Some of the original reports about particularly offensive remarks sity, but they are essential to it. Integrating diversity- attributed to Texaco officials turned out to be inaccurate. However, related material into executive and management soft-skill the overall thrust of the comments was certainly ill-advised. training programs is a critical component of an overall 3 Even the sexes sometimes seem to belong to different cultures.When diversity program. the Tom Hanks character in “A League of Their Own” exclaimed If there is a single lesson underlying these prescriptions, “There’s no crying in baseball!” he was genuinely shocked that the women on his team were distraught that he was yelling at them. The it is that managing diversity well is not simply about race or male ballplayers he had previously coached “understood” that a gender or ethnicity; ultimately it is about managing people manager was supposed to yell at his players; they didn’t take it per- as if people mattered. Again and again, diversity managers sonally. The women, on the other hand, interpreted the yelling at top companies stress a central message: A company’s through the lens of their own experience: If they were yelling at greatest resource is its people. Managed humanely, given someone the way the Tom Hanks’ character was yelling at them, it the chance to compete, “the opportunity to be discovered” would be because they were truly upset. Hanks’ character, for his in Carl Brooks’ memorable phrase, they will respond with part, interpreted crying as a sign of severe emotional distress and dedication and loyalty. “The secret is that it’s not just about weakness. So both sides “overinterpreted” each other’s behavior in blacks or women,” says Brooks. “It’s also about the white light of their own understanding of what was natural and proper to man who maybe didn’t go to the right school, or who does- the situation. n’t play golf, and who can remain undiscovered forever. If 4 Equal Pay Act 29 U.S.C. § 206(d)(1) (1994). people feel like they have an opportunity, they’ll work. If 5 Mandatory arbitration programs have generated many com- not, they’ll go home every night at 5 pm.” plaints. The primary one is that the adjudicators are usually drawn from senior leadership in the industry, and so are not balanced by race or gender. In its investigation of the securities industry, the Fulfilling the Dream U.S. Commission on Civil Rights found that 97 percent of the Does diversity only benefit those who are, in a sense, judges on the arbitration panel pool were white men. Women and minorities who are considering whether or not to file dis- already “in the game”? Skeptics sometimes argue that cor- crimination grievances must find that statistic rather daunting. porate diversity won’t help the bottom quarter or quintile For this reason and others, the Equal Employment Opportunity of people who have never learned the skills that corporate Commission generally discourages mandatory binding arbitration America needs. Companies are, after all, in the business of as a condition of employment; increasingly, however, the courts making money. Those who have been consigned to the are finding such policies lawful.

Winter 2002 / Civil Rights Journal 71 B OOK R EVIEWS

his colleagues note, such “system-jus- need to view themselves as both com- Perceived Legitimacy in the tifying” beliefs (that our society is petent and morally good. Arguably, Struggle for Civil Rights good and fair) may either comple- these psychological motivations are at Review of The Psychology of ment or conflict with rationalizations least as important to people as the Legitimacy, edited by John Jost each of us uses to preserve esteem for political and material self-interest that and Brenda Major ourselves and for our groups (based on Machiavelli and Marx claimed as the ethnicity, gender, class, etc.). The pos- driving forces behind ideological con- Reviewed by Peter Glick and sible conflicts between these levels of victions. Recognizing psychological Susan T. Fiske rationalization (self, group, society) motives helps to explain behavior that differ for the privileged and the disad- appears to contradict self-interest, but To the extent that civil rights move- vantaged. fulfills the need to feel morally correct. ments are battles for the hearts and The revolutionary zeal of affluent minds of the public, they are conflicts Legitimization Among the reformers (Marx and Engels, after all, about the perceived legitimacy of our Privileged were members of the bourgeoisie) illus- social institutions and laws. Political trates how material self-interest can theorists, including Machiavelli and Happy are the privileged for whom jus- take a backseat to a desire to be morally Marx, have long recognized that per- tifying the legitimacy of society simul- good. In successful social movements, ceptions of legitimacy—what people taneously fulfills the goals of flattering reformers have provoked (what Haber- perceive to be correct, proper, or themselves and their groups. Successful mas termed) a “legitimation crisis” morally acceptable—are critical to the members of dominant social groups among members of the dominant maintenance of social and political can feel good about themselves, the social group. When most white Ameri- hierarchies. Legitimization conspires groups to which they belong, and their cans were led to realize that racial seg- with psychological, social, political, society by embracing mutually rein- regation contradicts American demo- and economic processes to support forcing beliefs in the legitimacy of cratic ideals—central to the perceived established social hierarchies. each. For example, the system-justify- moral goodness of American identity— The Psychology of Legitimacy, edited ing belief that American society is a attitudes changed. by John Jost and Brenda Major, collects perfect meritocracy provides individual One’s own and one’s group’s per- varied perspectives on the social-psy- and collective self-esteem for affluent ceived morality, however, can all too chological processes, among both the whites, confirming that their own and easily reconcile with justifying hierar- advantaged and the disadvantaged, their group’s success is due to talent chy and discrimination. Mary Jackman that shore up this wall around the sta- and effort, not group privilege. By suggests that paternalism appeals to the tus quo. Because we contributed a asserting the fairness and legitimacy of privileged through a mental jui jitsu chapter, this article is not intended to society as a whole, these individuals that transforms exploitation into be an objective, critical review, but also reinforce positive self-images and benevolence, and dominance into serv- rather to highlight the broader implica- group identifications. ice. Paternalistic legitimizing myths jus- tions of theories and research presented That the privileged typically support tified 19th-century colonialism and in the book. (The researchers men- a discriminatory system surprises no slavery, by affirming white European tioned below are either contributors to one. Nor is this basic tenet of Marxist racial and cultural superiority while the book or cited in it.) We will con- thought a new idea. What the psycho- simultaneously defining, and by con- centrate here on one of the most dis- logical perspective adds, however, is the struing their actions toward “inferior” turbing aspects of the tendency to legit- realization that legitimizing beliefs are groups as benevolent rather than imize—how difficult it is to puncture not solely about maintaining eco- exploitative (e.g., governing people the apparent legitimacy of a discrimi- nomic advantage, going beyond pure who were perceived as incapable of natory social system, even among Marxian views, nor are they merely governing themselves and ostensibly those who bear the burdens of disad- cynical, deliberately Machiavellian introducing culture and true religion to vantage and discrimination. attempts to placate the masses. Ratio- “superstitious savages”). Psychological theories of legitimacy nalizations are truly effective only Although the sensitivity of Ameri- examine what Jim Sidanius and his when they deceive oneself as well as cans to race relations has suppressed colleagues have termed “legitimizing others. The most powerful legitimizing more overtly paternalistic attitudes myths,” the shared values, beliefs, and ideologies are sincerely held, unreflec- toward nonwhites (e.g., speaking of the ideologies that justify social hierarchy. tively believed, and widely shared. “white man’s burden” has gone out of Legitimizing myths provide Pangloss- For the privileged, the most attrac- fashion), attitudes toward nonwhites like rationalizations as to why, despite tive rationalizations not only reinforce still often contain an element of pater- obvious inequities, ours is the best of their economic and social advantage, nalistic pity. Overtly paternalistic atti- all possible societies. As John Jost and but also fulfill the basic psychological tudes toward people who are older,

72 Civil Rights Journal / Winter 2002 B OOK R EVIEWS physically disabled, mentally disabled, while also conferring a moral legitimacy vantaged groups face a legitimization and female have not been as thor- on men as chivalrous, self-sacrificing crisis in which the desire to see their oughly challenged. Our own work protectors (rather than exploiters) of society as fair conflicts with motivations (with Amy Cuddy and Jun Xu) shows women. For dominants, paternalistic to view themselves and their group in a that these groups elicit mixed stereo- ideologies avoid legitimization crises by positive light. types of low competence and high justifying their own superior status (and This dilemma can be resolved by warmth, correlated with their low-sta- the social practices that preserve it) viewing society as unjust, but mal- tus but noncompetitive social niche. while simultaneously asserting their leable, and then joining collective Paternalism is both subjectively own benevolent moral goodness. movements for social change. But the benevolent and effectively hostile. On disadvantaged are less likely to band the one hand, it evokes pity, which Legitimization Among the together and work collectively for leads to helping, and it justifies protec- Disadvantaged change when a society allows for even tive legislation for groups perceived to minimal social mobility (e.g., be weak. On the other hand, a fine line Members of disadvantaged groups tokenism). Stephen Wright has com- separates “protecting” and restricting. have a more difficult time resolving pared experimental conditions in Opposition to the Equal Rights Amend- conflicts between the desires for self- which individuals are informed that ment, for example, was framed as pro- esteem and belief in the fairness of they have been denied membership in tective (e.g., concerns about the draft). their society. If members of low-status a high-status group because members Our research on ambivalent sexism groups view society as just, their disad- of their participant’s group (based on examines the role that “benevolent vantaged position implies unflattering the participant’s area of study at the sexism” plays in legitimizing gender views of themselves and of their group. university) were either (a) completely inequality. Benevolent sexism com- Social psychologists have discovered a restricted or (b) allowed to form only 2 prises subjectively positive responses to number of ways in which people solve percent of the high-status group’s women that nevertheless presume this conundrum. Unfortunately, many membership. Participants were then them to be the “weaker sex,” requiring of these solutions fail to challenge given several options: take no action; men’s protection and provision. Exam- social injustice. take individual action (aimed at getting ples of such beliefs include the ideas into the group without challenging the that women ought to be set on a discriminatory rules); or take collective pedestal, that women are more morally PSYCHOLOGICAL THEORIES OF action (openly challenge the rules as pure than men, and that women LEGITIMACY EXAMINE THE unfair to members of their group). In require men’s protection. In a study of the completely closed condition 19 nations, we found that where SHARED VALUES, BELIEFS, AND (where no “social mobility” was benevolently sexist attitudes were allowed), participants strongly endorsed, so too were hostile sexist IDEOLOGIES THAT JUSTIFY endorsed collective action. But when beliefs (that is, nations in which benev- SOCIAL HIERARCHY. the high-status group was even slightly olent sexism scores were high invari- permeable (accepting just 2 percent ably also showed high hostile sexism membership from the participant’s scores). Furthermore, both types of sex- One psychological obstacle to ques- group), individualistic action was pre- ism (hostile and benevolent) predicted tioning the legitimacy of the social sys- ferred and collective action became an standard U.N. measures of national tem is people’s desire to believe in a unpopular choice. inequality between women and men just—even if cruel—world. The motiva- Wright’s results illustrate that collec- (e.g., fewer women in top governmen- tion to view the world as controllable is tive action is most likely in the face of tal and business roles). both strong and basic, as Melvin Lerner clear-cut discrimination that com- In the contemporary U.S. political first pointed out. Believing that people pletely closes off opportunities for the climate, women’s civil rights are get what they deserve and deserve what advancement of specific social groups. attacked more effectively by those who they get maintains this sense of control, Allowing even a token amount of social espouse a benevolently protective, without which people risk feeling help- mobility can diminish collective action; rather than an overtly hostile, ideology. less and depressed. Members of disad- Wright empirically demonstrates how Hostile justifications (e.g., that women vantaged groups therefore face a diffi- to co-opt the oppressed but talented. do not possess leadership ability) are cult psychological dilemma: believe in Thus, a system that promotes only a politically incorrect. In contrast, the basic fairness of the world and view few members of disadvantaged groups because of its affectionate, protective their poor outcomes as deserved, or rec- to tokens in high-status positions can tone, benevolent sexism is often ognize that society is unfair and risk have unfortunate side effects—when embraced by women as well as men. feeling helpless. Thus, Jost and his col- the success stories can coexist with con- And it manages to justify inequality leagues propose that members of disad- tinuing disadvantages and a discrimina-

Winter 2002 / Civil Rights Journal 73 B OOK R EVIEWS tory system. Questioning the fairness of Unfortunately, for disadvantaged reduce them to a stereotype, to perceive the society becomes less attractive to minorities these domains—such as them (negatively) as a “typical” mem- members of disadvantaged groups than school—may be precisely those that ber of their group. (Anybody can fall do individual attempts to get ahead provide the best opportunity for prey to stereotype threat in domains within the system. Furthermore, mem- upward mobility. where their group is negatively stereo- bers of privileged groups can point to In contrast to older notions of minor- typed, for example, white athletes com- the few prominent success stories to ity self-hate, current research suggests paring themselves to black athletes.) bolster their beliefs that the system is common ground between the disadvan- Strikingly, stereotype threat endangers fair. Thus, ideologies such as the Protes- taged and the advantaged—everyone is every level of schooling for groups tant work ethic and tokenism not only motivated to develop a positive, distinc- stereotyped as academically weak. Even soothe the consciences of the privi- tive identity. Being in an advantaged those individuals whose talent and leged, but (in a semi-permeable society) position helps the privileged to base effort gain them admission to elite col- also puncture collective resistance by their individual and collective self- leges can fall prey to such anxieties if the disadvantaged. esteem on traits (e.g., competence and they perceive the school environment Furthermore, individual members of ambition) and accomplishments (e.g., as promoting stereotypical views of oppressed groups who are successful education and high-status jobs) that their group (as minority students often tend themselves to buy into justifica- consolidate their privilege. In contrast, feel at majority-white colleges). Fortu- tions of the status quo. Having nately, if schools build a sense of trust, achieved their success within the sys- they can diminish stereotype threat tem, they have a stake in asserting its DISILLUSIONED AFRICAN and performance gaps between stu- fairness—belief in meritocracy con- AMERICAN STUDENTS dents who are negatively academically firms that their own success is well stereotyped and those who are not. deserved. Naomi Ellemers has found DEVALUE THE IMPORTANCE that successful women in male-domi- Conclusion nated fields tend to distance them- OF ACADEMIC FEEDBACK SO selves from other women, viewing THAT FAILURE AT SCHOOL Legitimization conspires with psycho- themselves as different. Rather than logical, social, political, and economic helping other members of their sex, DOES NOT THREATEN HOW processes to support established social women who have succeeded in typi- hierarchies. The Psychology of Legiti- cally male domains tend to view other THEY FEEL ABOUT macy, edited by Jost and Major, collects women stereotypically. THEMSELVES. varied perspectives on the social-psy- What about those who are left chological processes, among both the behind? The famous Clark and Clark advantaged and the disadvantaged, studies in the 1960s, which showed lack of opportunity and discrimination that shore up this wall around the sta- that black African American children hinder members of disadvantaged tus quo. The varied perspectives pre- preferred to play with white-skinned groups from priding themselves on the sented in The Psychology of Legitimacy (not brown-skinned black) dolls, rein- traits and achievements most valued by can be usefully applied in many con- forced the then-popular idea that self- the dominant society. texts. We are not so much interested in hate was the inevitable outcome of dis- Major and Schmader’s research has promoting a particular book as the use- crimination. Newer research, however, demonstrated that disillusioned ful ideas it represents. In legal settings, shows that the self-esteem of ethnic African American students devalue the legitimization provides a theory of the minorities equals or exceeds that of importance of academic feedback— prejudiced mind. In politics, legitimiza- whites and that black children no when they suspect it may be racially tion explains change and stagnation. longer prefer white dolls. This may, in biased—so that failure at school does In social services, legitimization pro- part, reflect an increase in minority self- not threaten how they feel about vides a window for combating alien- esteem over the last 40 years. However, themselves. Protecting self-esteem in ation. In diversity consulting, legit- as Brenda Major and Toni Schmader this manner, however, decreases moti- imization provides an opportunity for note, as researchers have probed more vation to do well and promotes alien- examining shared assumptions that deeply into minority self-esteem, they ation from school (e.g., viewing school support the status quo. Perhaps knowl- have discovered that members of dis- success as “acting white”). This process edge in this case can truly empower. advantaged groups are quite adept at is triggered by what Claude Steele has often preserving individual and collec- termed “stereotype threat”—the per- PETER GLICK IS PROFESSOR OF SOCIAL PSY- tive self-esteem, but often at the steep ception among members of stereo- CHOLOGY AT LAWRENCE UNIVERSITY; price of disengaging from domains in typed groups that should they ever per- SUSAN FISKE IS A PROFESSOR OF PSYCHOL- which their group tends to fare poorly. form poorly, others are all too ready to OGY AT PRINCETON UNIVERSITY.

74 Civil Rights Journal / Winter 2002 B OOK R EVIEWS

The Enigma of the Stigma demonstrate. This concise volume, tion about “marked” persons may draw based on a series of lectures delivered at unwarranted inferences about individ- Review of The Anatomy of Racial Harvard, is not easily sampled, uals that are grounded in the general- Inequality by Glenn C. Loury skimmed, or summarized. It is never- ization. Persons about whom infer- theless well worth the effort it ences have been made may then adjust Reviewed by Christopher H. Foreman, Jr. demands. The reader will find no new their actions in ways that confirm the data but rather “a novel conceptual stereotype. Thus a sequence of mutu- In America’s cottage industry of writ- framework for assimilating the evi- ally supportive belief and behavior ing on race, a few nonfiction cate- dence at hand.” The argumentative emerges. By way of example Loury gories predominate: history, biogra- style is partly deductive and frequently posits an employer who, believing that phy, personal memoir, journalistic interdisciplinary, though strongly black trainees are more likely than oth- exposé. But most stimulating and use- anchored (especially near the opening) ers to perform poorly, sets a lower tol- ful for raising the level of public dis- in the economic analysis that is Loury’s erance threshold for errors by such course are social science-based com- intellectual home turf. trainees. The black trainees, in turn, are mentaries that aggressively invite more likely than others to read this sophisticated general readers to recon- LOURY IS INTERESTED IN employer behavior as a disincentive to sider what they know (or think they perform well. “Knowing they are more know) about the condition and THE POTENTIAL FOR likely to be fired if they make a few mis- prospects of African Americans. Exam- takes, an outcome over which they ples include recent work by sociologist STEREOTYPES TO BE cannot exert full control, more black Orlando Patterson, historians Stephan “REASONABLE” IN than other workers may find that exert- and Abigail Thernstrom, and political ing high effort during the training scientist Paul Sniderman. Whether THE SENSE THAT THEY ARE period is, on net, a losing proposition one remains optimistic or pessimistic for them.” They thus behave so as to about America’s enduring racial prob- “SELF-CONFIRMING.” confirm the expectations held of them. lems, we are indeed blessed with a Loury offers additional examples: broad spectrum of researchers and Loury sets forth the core of his argu- black automobile buyers and black stu- thinkers, from Thomas Sowell on the ment in three chapters on racial stereo- dents applying to professional schools. right to Lani Guinier and Christopher typing, racial stigma, and racial justice. These “thought experiments,” as Loury Edley on the left, who remain eagerly Quite early in the book, Loury begins presents them, likewise conclude with and productively focused on this laying the groundwork for his position the buyers and students behaving so as important intellectual work. that “taking race into account” is not to confirm the expectations held of Economist Glenn Loury offers us a an invidious practice per se. Indeed, them. What is most interesting and fascinating new addition, this one pos- doing so turns out to be something of a pernicious here is that this dynamic ing a direct challenge to the Thern- moral imperative. He comes to this may be driven entirely by mutual stroms’ impressively comprehensive conclusion even though he begins by expectations rather than by the under- and influential 1997 volume America in positing “race” as a construct grounded lying capacities of the parties to the Black and White: One Nation, Indivisible. only in the simple (if universal) need of relationship. Once favored by conservatives for his human beings to organize, cope with, Some readers may reasonably ask, willingness to question racial prefer- and gather information about the however, whether the perverse patterns ences—he was briefly considered for a world they find themselves in. But the Loury presents are actually telling us political appointment in the Reagan “body markings” we construe as “race” everything we need to know. Might administration—Loury’s arguments are of importance to Loury (and to the even the conscientious “thought exper- now place him closer to those “racial rest of us) as bearers of “social mean- imenter” easily (however unintention- liberals” with whom he still has his dif- ing.” These markings, he says, “signify ally) rig an experiment? Within the ferences. something of import within an histori- world as Loury posits it, his logic seems While Loury doubtless feels strongly cal context.” impeccable. But what if inconvenient about his subject, The Anatomy of Racial Loury is interested in the potential additional facts (such as genuinely Inequality is a remarkable (if not in for stereotypes to be “reasonable” in lower skill or motivation on the part of every respect fully persuasive) effort to the sense that they are “self-confirm- his hypothetical trainee) are present, as reason rigorously. The presentation, ing.” As human beings, we are both they might indeed be in a real work- though accessible to the general reader, burdened by limited information about place? In that event, the negative out- is crafted to pass muster with profes- the world around us and inclined to come could not reasonably be held to sional peers, who want to know not make generalizations. More particu- stem entirely from the perverse stereo- what Loury feels but what he can larly, someone having limited informa- typing dynamic Loury wants to illumi-

Winter 2002 / Civil Rights Journal 75 B OOK R EVIEWS nate. (The notion that low teacher strongly imbued with a significance not my job to assay this terrain con- expectations induce low performance and association. “[T]he symbols we call vincingly for others.) is a familiar one in debates about edu- ‘race’ have through time been infused Where does all this take us as a pol- cation reform. But is this all we need to with social meanings bearing on the icy enterprise? For one thing, we get know to raise minority test scores?) identity, the status, and the humanity here a new analytic vocabulary justify- This reservation stated, however, of those who carry them.” If this is so, ing an equal opportunity emphasis, a Loury’s reasoning performs an impor- the obvious charge to the racial distinction between reward bias (under tant social and intellectual service by reformer is to create new meaning, if which “productivity is rewarded differ- alerting us to the possibility that some such a thing is possible. Loury antici- ently for members of distinct racial unknown fraction of unwholesome pates an equally obvious objection groups”) and development bias (which interaction across the racial divide from, if not the Thernstroms them- makes “opportunity to acquire produc- might derive importantly from the selves, then surely from readers familiar tivity . . . unequally available to the kind of perverse expectations logic he with their recitation of survey evi- members of distinct racial groups”). For lays out. A theory that is not univer- dence. Isn’t the social meaning of race Loury the former is classic discrimina- sally applicable is not worthless. changing (such a reader might ask) as tion, and worthy of less emphasis in our Indeed, Loury’s argument might reflected both in the long-term trend racial discourse than the latter, which prompt useful work on two fronts. Aca- data showing increased tolerance of lies more deeply embedded in a foun- demics might subject Loury’s argument dation shaped powerfully by stigma. If to careful scrutiny, including hard LOURY IS LESS INTERESTED anti-black reward bias has declined, a empirical research. Meanwhile the rest crippling development bias lingers that, of us might profitably reconsider the IN “REACHING BEYOND unfortunately, is anchored strongly in roots of our own behavior regarding an informal, nongovernmental realm persons bearing “body markings” other RACE,” THAN FACING UP TO that our political culture places largely than our own, especially when that dif- THE SOCIAL FREIGHT THAT off-limits to even determined efforts at ference is amplified by other disparities social justice policy entrepreneurship. in social or organizational standing. RACIAL “MARKINGS” FORCE Loury’s analysis here calls to mind Pat- But, if Loury is right, such reconsid- terson’s focus on informal social net- eration by ordinary people will be A SIGNIFICANT SLICE OF works as crucial channels for group unusual, if not exceedingly rare. Explic- THE AMERICAN POPULATION advancement that are less viable among itly considering the possibility that blacks—a collective disability justifying such a self-confirming feedback mech- TO CARRY. (for Patterson at least) affirmative action anism could be unveiled and discred- (at least for a limited time). ited, Loury believes this a tall order for blacks by whites and in the prolifera- Loury, by his own account, is most persons. Given the deeper realm tion of widely admired persons of adamant that he is not up to “some of “nonrational factors—in particular, color? Loury’s insistence that probes of over-theorized discourse in defense of the taken for granted meanings that popular “attitudes” cannot capture affirmative action policies.” In finding may be unreflectively associated with what he’s getting at (i.e., “meaning”) is both liberal individualism and his own certain racial markers” in which their a claim likely to generate some resist- discipline’s analytic emphasis on atom- cognitive processes are anchored, such ance. Empirically minded critics will ized individuals wanting, Loury has far detached reflection may be unrealistic insist on knowing (and debating) more on his mind than the battle over to expect. whether one can observe and measure diversity in corporations and universi- In theorizing about “the mental (as distinct from personal attitudes) “an ties. Rather, he suggests that since race processes underlying . . . cognitive entrenched if inchoate presumption of matters as a profound and subtle gen- acts,” economist Loury may be on thin inferiority, of moral inadequacy, of erator of inequality, so should it be ice. (One anticipates that social psy- unfitness for intimacy, of intellectual allowed also to matter in the concep- chologists will want to weigh in here.) incapacity, harbored by observing tion and implementation of ameliora- But it is there that he must go to pursue agents when they regard the race- tive policies. He is less interested in the next (and perhaps the most chal- marked subjects.” One can see what “reaching beyond race” (as Sniderman lenging) part of his argument, which Loury is getting at here: a reflexive, and his collaborators would have us centers on the notion of racial stigma. unquestioned “us” and “them.” (I do) than in facing up to the social While Loury’s discussion of stereotyp- believe I have detected such “cogni- freight that racial “markings” force a ing centers on information, stigma is all tions” myself, from time to time, in significant slice of the American popu- about meaning. Bodily “markings” (or persons who wouldn’t dream of behav- lation to carry. For Loury the tenacious any visible characteristic of any person ing inhospitably, much less abrogating pursuit of “race-blindness” may ironi- or thing, for that matter) may become my rights. Yet I am relieved that it is cally make us morally blind as well.

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Distinguishing among policy imple- of black nationalism. Indeed America in climb the mobility ladder, fulfilling mentation, policy evaluation, and Black and White explicitly attacks, in their parents’ aspirations for them, or “civic construction” (the domain plain black and white, the conservative will they fall down the ladder, perhaps where “we are building monuments, reluctance to “acknowledge the ugli- even faring worse than their immi- constructing public narratives, enact- ness of our racial history and the per- grant parents? ing rituals and . . . pursuing policies sistence of racism” only two para- This is the central question underly- that have an inescapably expressive as graphs before the Horowitz reference. ing Alejandro Portes and Ruben G. well as directly instrumental face”), On the whole, however, Loury Rumbaut’s exciting new book, Legacies: Loury argues that the race-blindness of serves us well by directing us toward The Story of the Immigrant Second Gener- liberal individualism in the first and “the enigma of the stigma.” He brings a ation, and the answer, as they persua- second realms is both “ahistorical and keen and subtle mind to bear on a set sively argue, goes beyond matters of sociologically naïve.” Only in the last, of issues that sorely needs it. The immigration. Indeed, the authors argue he believes, “should some notion of Anatomy of Racial Inequality is thought- that the story of the immigrant second race-blindness be elevated to the level ful, provocative, and demanding (in generation, specifically, its social and of fundamental principle.” both the intellectual and political economic adaptation, can lead to two This is, of course, a startling policy sense). It is sure to be at the center of all dramatically different national fates, in stance from a scholar once so welcome sophisticated discussions on race for one case a nation revitalized by the in Republican-dominated salons. For years to come. new ethnic mosaic, and in the other, a those of us who have been reading nation downtrodden by an escalation Loury for a while, his alienation from CHRISTOPHER H. FORMAN, JR., IS PROFES- in its social problems. Ethnicities, the more “conservative” brands of think- SOR IN THE SCHOOL OF PUBLIC AFFAIRS AT companion volume to Legacies, speaks ing about race is not news. He repeats THE UNIVERSITY OF MARYLAND. to a related question that has been the the critique he launched in the Atlantic subject of debate in political and public Monthly some four years ago against policy arenas, namely, the role of the Thernstroms’ America in Black and nationality or ethnicity in different White. In the mid-1980s, political sci- The Future of Immigrant immigrant and second-generation out- entist Donald L. Horowitz coined the Children, and What it Means comes. In sum, the two volumes pro- phrase “the figment of the pigment” to for the United States vide a detailed rendering of the immi- describe a mistaken belief in race and grant second generation, including Review of Legacies: The Story of the ethnicity as fundamentally different. how ethnicity plays out in immigrant Immigrant Second Generation and The Thernstroms approvingly cite the mobility, and in so doing, a possible Ethnicities: Children of Immigrants in phrase in describing “the myth that forecast of our nation’s future. America by Alejandro Portes and racial groups are sealed compartments, If we look to the historical record, Ruben G. Rumbaut impervious to change.” Loury says that we see in an earlier wave of immigra- the Thernstroms “blame race-con- Reviewed by Vivian Louie tion to the United States one possible scious public policies for what they take outcome for the new second genera- to be an excess of racial awareness In the wake of large-scale immigration tion. It is estimated that between 1880 among blacks,” a view he thinks “gets to the United States over the last 40 and 1924, 13.5 million south-central- it exactly backward.” For him “it is the years, immigrants and their children eastern European immigrants landed historical fact and the specific nature of today number 55 million persons, or on American shores. They came largely blacks’ racial otherness that causes one out of every five Americans. The from peasant, semi-literate back- affirmative action [for blacks] to be so incorporation of immigrants and their grounds, had few skills, and their recep- fiercely contested . . .” (Along the way children has far-reaching implications tion in the United States was often vir- Loury himself misstates the Thern- for our nation. One is the creation of ulent discrimination combined with stroms’ argument. They don’t suggest new ethnic groups, concentrated in intense xenophobia, as they were com- that African Americans’ belief in the several states and metropolitan areas. pared unfavorably to the northwestern myth is the specific problem but rather Another has to do with the eventual European, Protestant migrants who that a widespread susceptibility to this trajectories of these ethnic groups. A had come before them. Yet successive belief is.) Loury also categorizes the key determinant of these trajectories generations came to achieve socioeco- Thernstroms as “conservatives,” but will be the outcomes of the second- nomic mobility and were eventually that has always seemed to me a pecu- generation immigrant children who incorporated into the nation’s social liar label for two old-fashioned Ivy were either born in the U.S. or came fabric, giving rise to the classic assimi- League liberals who happen to take a here at an early enough age to be lation paradigm in the field of sociol- skeptical stance toward affirmative largely socialized here. How will they ogy, one in which mobility and inte- action and certain delusional varieties fare in the United States? Will they gration into mainstream American

Winter 2002 / Civil Rights Journal 77 B OOK R EVIEWS culture (e.g., white, middle-class, and of upon strong ethnic communities and hour-glass economy sharply divided European, Protestant origins) went develop strong ethnic attachments between well-paid employment for the hand in hand. along with positive outlooks on school- highly educated and highly skilled, and Portes and Rumbaut, however, offer ing. A third group of children who conversely, low-paid jobs for unskilled a very different picture of what could experience discrimination and settle workers with low levels of education, happen to the immigrant second gen- near native-born minority groups in with few opportunities in between. eration, one decidedly less optimistic. struggling neighborhoods adopt nega- Will the second-generation children Some ethnic groups will indeed see tive outlooks on schooling and assimi- acquire the necessary education to join their second generation follow the clas- late into urban poverty. the top segment of the economy? The sic assimilation paradigm, and quickly This previous work on immigration third crucial development has been the become incorporated into the Ameri- left us with three important questions emergence of an American urban pop- can mainstream. This trajectory is that could be traced both to the demo- ulation living in neighborhoods devas- cause for optimism. Others, though, graphic profile of recent immigrants tated by the dual effects of industrial will see the second generation experi- and to the American economy that is restructuring and middle-class flight ence downward assimilation, experi- that have left them largely isolated and encing the intense poverty and alien- devoid of institutional support and ation from the mainstream that are THE STORY OF THE social organization. Some immigrants commonly associated with the Ameri- IMMIGRANT SECOND have settled near or in these neighbor- can underclass in response to the severe hoods, where residents try to cope with economic deterioration in many of our GENERATION CAN LEAD TO a frayed economic fabric of scarce job nation’s cities. If this scenario were to opportunities and poverty, and a social unfold, the urban underclass would TWO DRAMATICALLY fabric of drugs and violence. The resi- not only increase in sheer numbers but DIFFERENT NATIONAL FATES: dents are often the descendants of ear- also acquire a multiethnic character. lier black migrants from the American This trajectory is cause for pessimism. IN ONE CASE, A NATION South, and migrants from Puerto Rico In making this assessment, Portes and Mexico, who came to the urban and Rumbaut build on several rich REVITALIZED BY THE NEW centers in search of better lives for intellectual strands. One is their earlier ETHNIC MOSAIC, AND IN THE themselves and their children. Will the work, Immigrant America (1980), detail- new second generation find their ing where the new immigrants came OTHER, A NATION hopes and opportunities similarly from, the resources they brought with diminished? them, and the different contexts of DOWNTRODDEN BY ITS Legacies provides a strong empirical reception they faced in the United SOCIAL PROBLEMS. basis for exploring these questions. The States. Such contexts include how the book draws from the Children of government treats the group, its incor- Immigrants Longitudinal Study (CILS) poration into the labor market, and receiving them. First is the issue of race. based in Miami and San Diego, two whether the group joins an already Most of the post-1960 immigrants have sites that have been gateway cities for existing ethnic community. Another is been from Latin America, Asia, and the the post-1960 immigration to the an influential article written by sociolo- Caribbean, and are nonwhite. What United States. In Miami, the focus was gist Herbert Gans, who envisioned that role will the racial hierarchy in the the children of immigrants from Cuba, a significant portion of post-1965 sec- United States play in structuring the Haiti, the Dominican Republic, ond-generation immigrants might not outcomes of their second-generation Jamaica, and other islands in the Eng- follow the classic assimilation para- children? A second key development lish-speaking West Indies, Central digm, but rather would become alien- has been the increasing importance of America, and South America. In San ated, jobless, and decline into poverty. educational credentials in the U.S. Diego, the focus was the children of Building on this vision, Portes and soci- labor market. We know from sociolo- immigrants from Mexico, El Salvador, ologist Min Zhou argue that the chil- gist William Julius Wilson and econo- Guatemala, the Philippines, Vietnam, dren of post-1965 immigrants are mist Richard J. Murnane and others Cambodia, Laos, and East Asia (China, assimilating into different segments of that the American economy no longer Japan, and Korea). society, with divergent outlooks on provides well-paid manufacturing jobs The CILS student sample included schooling and socioeconomic out- to persons with low levels of education schoolchildren from the ages of 13 to comes. Two groups are able to achieve (as was the case during the earlier 17, with a mean age of 14, thus allow- upward mobility—those children who period of European immigration to the ing the authors to target children who assimilate into majority culture, and United States). Instead, the second-gen- had not yet dropped out of school. The those children who are able to draw eration children will be joining an children had to have at least one for-

78 Civil Rights Journal / Winter 2002 B OOK R EVIEWS eign-born parent, and were either born uncertain legal status that makes it dif- family discipline, a tactic the father in the United States or had lived in the ficult for Nicaraguans to convert their believes saved his son from gang life. U.S. for at least five years. Two surveys education into an economic toehold. In the minds of immigrant parents, were administered, the first to a sample Rather, they must settle for menial jobs Americanization brings with it negative of 5,262 students when they were in that leave them unable to transmit connotations that can endanger their the eighth and ninth grades, and the advantages to their children. In a children’s futures. Indeed, Portes and second when they were in their last poignant example, a young Nicaraguan Rumbaut find that immigrant children year of high school, or had already left daughter, an excellent student, who have been in the United States school. Interviews were also conducted expresses her hopes of attending col- longer have higher reading scores (indi- with 120 parents in 1992, followed by a lege. In this, she is supported by her cating their growing facility with the survey of 2,442 parents in 1995. The mother, who worked for an insurance English language) but lower grade quantitative analyses provide rich company in Nicaragua, and her point averages. With the passage of explanatory power, balanced by vivid mother’s partner, who had his own time, the immigrant drive for academic life histories of immigrants and their farm in their native country. But wait- achievement begins to wane as accul- American-born-and-raised children. ing on tables and delivering pizzas, the turation sets in. One key finding is that regardless of jobs her mother and partner have been There is also the crucial matter of nationality and socioeconomic back- able to get in the United States, do not race. While the educational and finan- ground, immigrant parents share high pay enough to fund a college tuition, cial resources that immigrants bring levels of optimism for their children’s and due to their uncertain legal status, with them matter, race plays a key role futures in the United States. Yet despite the daughter would not qualify for any in how immigrants can capitalize on this optimism, there is a gap between kind of financial assistance. those resources in the United States, what parents hope for, and how their The American social context comes and thus, the extent to which they can children are presently faring. On the to the fore as another critical external pass on advantages to their children. one hand, parental optimism translates factor. Immigrant parents maintain a Given that they are either born in the into an achievement drive on the part dual vision of the United States: a place United States or have grown up here, of their children. For some children, with abundant opportunities for their second-generation immigrant children though, there emerges an eventual dis- children, but also a place where youth confront an additional set of issues cen- juncture between these high aspira- gangs, drugs, and lax cultural norms tered on race, namely how they self- tions and actual outcomes. As Portes about parenting undermine their identify and how others see them. As and Rumbaut tell it, this disjuncture attempts to help children take advan- they are inserted into the American comes from several sources. One is tage of those opportunities. It is what racial hierarchy, immigrant children individual characteristics like the kinds Portes and Rumbaut term “the Janus- begin to see themselves as part of exter- of financial and educational resources faced nature of American society: nally constructed racial groupings, and that immigrant parents themselves unmatched educational and economic some racialize their national origins in have and bring with them, which can opportunities coupled with constant ways that their parents could not even shape their children’s paths; or whether multiple threats to family cohesion and imagine, while others must negotiate the immigrant family can provide the individual survival.” The challenge is immigrant and racial identities that stabilizing influence of two parents, as particularly acute for working-class par- can be at odds with one another. opposed to a single parent. ents whose abilities to monitor their In one telling example, the daughter Portes and Rumbaut further argue children are undercut by their lack of of Trinidadian professionals con- that the gap derives from the immi- financial resources. They cannot move sciously adopted the speech patterns of grant group’s mode of incorporation, to safer neighborhoods where gangs do her African American peers in school or a set of external conditions that lay not beckon, enroll their children in bet- in an attempt to fit in. Yet, outside of within the realm of public policy. How ter and safer schools, and discipline school, she found herself followed by the government receives an immigrant their children in ways that they are store clerks and the object of curt inter- group, for example, can play an impor- most familiar with. A Dominican actions with whites on the basis of her tant role in shaping the group’s out- father speaks of his attempts to disci- race. In an attempt to get better treat- comes. Portes and Rumbaut point to pline his 13-year-old son through phys- ment, she learns to telegraph her the example of Nicaraguans in Miami, ical punishment, as parents might do Trinidadian or West Indian identity by a group with relatively high levels of in his native land, and how his Ameri- trying to reclaim the “island accent” of education that could have allowed canized son responds—with a call to her parents’ homeland. them to climb the American mobility 911, reporting his father for child Here, the historical record provides ladder. Unfortunately, their claims for abuse. In this family, the solution was another interesting comparison. The political asylum and assistance have to send the son back to the Dominican earlier wave of south-central-eastern been routinely denied, resulting in an Republic for his schooling and a dose of European immigrants was classified as

Winter 2002 / Civil Rights Journal 79 B OOK R EVIEWS being of different racial stock (and persuasively argue that this dynamic In the third scenario, immigrant harshly discriminated against as a plays out differently among the various groups with few skills, or in some cases, result). Looking back, we may find this nationalities, “forging distinct but even the highly skilled, meet with a difficult to envision since their descen- undeniably American personalities and negative context of reception. For these dants have long gained acceptance as outlooks.” Portes and Rumbaut cull immigrant groups, there is no chance whites, and in fact, lay claim to an from these analyses to detail three pos- of obtaining good jobs in the main- optional ethnicity. We know from the sible paths of assimilation that high- stream economy; there is no available work of sociologist Mary Waters, for light how a group’s interaction with government policy of assistance; and example, that a third-generation Italian social structures has a decisive impact there is no pre-existing ethnic commu- American largely gets to choose on its outcomes. nity with strong support systems ready whether to be identified as Italian; it is In one scenario, immigrant groups to receive them. Rather, these immi- not an identity imposed on that per- arriving with high levels of education grant groups settle near or in already son by others. It is unclear, however, and skills meet with a neutral or favor- disenfranchised minority communities whether this new second generation of able context of reception. As a result, and experience persistent labor market West Indians, Dominicans, Mexicans, they are able to parlay their advantage and social discrimination. Their precar- and Vietnamese, and their children will in the economy, join the middle class, ious economic and social position in have such flexibility, or whether they and provide their children with the the United States only heightens the will continue to have racialized ethnic stresses that underlie immigrant adap- identities imposed on them by others, tation. Mexicans and Haitians experi- and occupy a lower rung in the IF HIGHER EDUCATION HAS ence this type of assimilation, along nation’s racial hierarchy. with Nicaraguans, who tend to have BECOME THE TICKET TO In Ethnicities, Portes and Rumbaut higher levels of professionalization, move to consider another important AMERICAN MOBILITY, THEN IT which they cannot capitalize on question that has fuelled much of the because of their uncertain legal status. immigration debate, that is, the role of IS OUR RESPONSIBILITY TO West Indian immigrants are interesting nationality and ethnicity in shaping because they face a similar kind of dis- ENSURE THAT CHILDREN HAVE different outcomes among immigrant crimination, but the effects are medi- groups. As they point out, analyses of SOME KIND OF EQUITABLE ated, in part, by their skills and high CILS data consistently point to nation- levels of education, English language ality or ethnicity “as a strong or signif- ACCESS TO HIGHER facility, and attempts to retain their icant predictor of virtually every adap- immigrant culture. EDUCATION. tation outcome.” The important These pathways to assimilation for question is why. Political conservatives the immigrant generation and their certainly have provided one answer, benefits that come with this status. Fil- children prove to be a compelling long touting the extraordinary success ipinos would be one example of this argument for seeing group outcomes of Asian groups (as compared with type of assimilation. In the second sce- as embedded in structural factors at Latinos, for example), and West Indi- nario, the key is a context of reception various levels. In effect, Portes and ans (as compared with African Ameri- that allows for the development of Rumbaut’s two volumes present a per- cans). According to this line of ethnic communities with strong eco- suasive and empirically robust argu- thought, which finds some support in nomic opportunities. Two groups that ment against the idea that certain the American public, superior cultural came to the United States as refugees, groups are culturally positioned to do resources are the key reason why some the first wave of Cuban exiles to Miami better than others. immigrant groups are able to fare bet- and the Vietnamese, would be exam- In their policy recommendations, ter than others. ples of this pathway. The U.S. govern- Portes and Rumbaut focus on educa- The scholars assembled to analyze ment provided crucial assistance that tion and the role of language acquisi- the CILS dataset and draw upon their allowed for families and communities tion. They make the case that immi- own expertise, however, draw a very to be reconstituted, along with strong grant children should learn both different kind of conclusion. In fact, ethnic networks. Thus, while the English and their parents’ native lan- individual resources recede in impor- immigrant groups may not have high guage in school, and in fact, become tance, in comparison to how social levels of education or skills, they do fluent in both. Such bilingualism will structures incorporate the immigrants. have access to the opportunity to build then lead to high academic outcomes, The story is not of individual ambition, small businesses in these ethnic a better relationship with parents, and or even skills, but one of “constraints enclaves and capitalize on their ethnic presumably, mobility. This prescription and opportunities” created by these networks to support the education of is very different from what they con- social structures. Portes and Rumbaut the second generation. tend actually occurs in the public

80 Civil Rights Journal / Winter 2002 B OOK R EVIEWS school system, where bilingual educa- native-born and immigrant children are Student Adaptation Study (LISA) based tion has become synonymous with attending the same urban schools beset at the Harvard Graduate School of Edu- “temporary instruction in a foreign lan- by disinvestment, gangs, and concerns cation. In this study, Marcelo and Car- guage for children unable to speak Eng- about general safety. If higher education ola Suarez-Orozco are examining how lish.” In the authors’ view, the current has indeed become the ticket to Ameri- immigrant students and their parents attempt to quickly mainstream immi- can mobility, then it is our responsibil- engage with education over a period of grant children plays out to deleterious ity to ensure that children have some five years. The students, who were first effects: some children not only lose kind of equitable access to higher edu- contacted when they were between the most of their foreign language facility, cation. The question then becomes, ages of 9 to 14, are in many ways the but they end up with limited English how can we improve the opportunity younger counterparts to the adoles- skills as well. Even those children who of all children to learn in public cents who were the core of Legacies. become adept at the English language schools? For example, we might con- The LISA study further extends the line still lose out in a global economy, sider if there is any way to replicate the of inquiry by observing how children where speaking several languages has strong optimism of immigrant children interact in their schools, communities, become ever important. Their point on among the children of long-term and homes, and assessing their lan- language is well taken, even though the minority groups. Or does the relation- guage ability and achievement through Asian groups in the study appear to be ship go only one way, with immigrant individually administered instruments. an interesting exception to their the- children acculturating into a decline in The latter will provide a welcome check ory. The Asians rapidly lose their achievement motivation? on self-reported data on the part of stu- parental language and yet do extremely And here, the dynamics of race and dents or parents, as well as data released well in school, while some of the ethnicity that Portes and Rumbaut by the schools. Latino groups are much more likely to elaborate on so gracefully elsewhere The Immigrant Second Generation maintain Spanish language facility but need to be taken into account. How in Metropolitan New York based at the do not fare as well in school. do race and ethnicity shape children’s City University of New York Graduate With their educational policy pre- experiences with education, particu- Center is a project that promises to scriptions, Portes and Rumbaut provide larly in middle and high school, the shed light on second-generation an important window into how to time when their performance struc- adults. Two sociologists, Mary Waters meet the challenges facing immigrant tures access to higher education? Race, and Philip Kasinitz, and a political sci- children in the public school system. as Portes and Rumbaut and other entist, John Mollenkopf, are investi- The stakes are high. As Portes and Rum- scholars have shown us, still has a gating the second generation’s educa- baut point out, these immigrant chil- powerful impact on how Americans tional, economic, political, and dren have a single lifetime to match are treated and viewed. If that is the cultural lives. In a sense, then, the Sec- the educational credentials that the case, what is the role of teachers’ and ond Generation project will give us an descendants of earlier European immi- peer group perceptions and academic idea of where the children in Legacies grants had several generations to expectations for different racial and may end up. Additional strengths of acquire. This “fast-forwarding” of the ethnic groups, for both immigrant this study are that it includes native- educational trajectory is required for and native-born children, and what born groups (e.g., whites, African the new second generation to make it effect do these expectations have? It Americans, and Puerto Ricans) as a in the new American economy. might also be useful to examine if and comparative frame for the immigrant Immigrant status, however, may how schools as social institutions per- experience and an ethnographic com- only be one layer of the compelling petuate or challenge racial, ethnic, ponent that studies the second gener- educational issues that demand our and class stratification, with an eye ation in diverse social settings such as attention. Policies developed for immi- towards school tracking and funding. a community college, the church, and grant children attending poor, urban A look at these types of issues might a labor union. schools might also need to address the help us explain why some of the There is a tendency in the United challenges found among all children Asians in Legacies were faring better States to see immigrants as occupying a attending these schools, both immi- than some of the Latinos, despite their separate space, both physically and grant and native-born groups, particu- different language patterns. symbolically. They come from places larly minorities. There will likely be Other researchers have been that seem far away, and in some cases, some divergence between the two addressing these areas in ongoing proj- are literally so. Some arrive in mysteri- groups in matters of importance, espe- ects that, along with the contributions ous ways, under the cover of night, or cially when it comes to language issues made by Portes and Rumbaut, will through smugglers preying on their and socio-cultural adjustment for immi- deepen our understanding of this hopes for a better life. Once in the grants. But in other important respects, important population. One of these United States, they negotiate a Byzan- there is much overlap. After all, both projects is the Longitudinal Immigrant tine bureaucracy for green cards, legal

Winter 2002 / Civil Rights Journal 81 B OOK R EVIEWS papers, matters that non-immigrants But in an echo of the old distinction lem, understanding that the phenom- do not often understand too well. In between poor of the deserving and enon is multidimensional, and its the public mind, immigrants are here, undeserving kind, some commenta- causes complex. Any number of fac- but they are not of here. While their tors insisted that the problem was tors increase the risk of falling into presence is embodied in the clothes we rooted in the behavior and outlook of poverty: residing in central cities; lack- wear, the fruits and vegetables we eat, the poor themselves. Diminishing the ing the educational credentials that and at the other end of the spectrum, penalties associated with poverty employers want; having grown up the medical care and computer chips would do more harm than good: poor; starting out life without two par- to which we have access, they often unless pushed to mend their ways, ents; membership in a group for which seem to be invisible. And when they do those who had internalized the “cul- some white Americans might have become visible, they are often framed ture of poverty” would be unlikely to considerable distaste, or, from a differ- as a problem that can be managed by change. ent point of view, that might have a laws restricting their entry. What we Of course, the poverty debate was preference for idleness over work. But are left with in Legacies is how incom- not just about the poor; it was also the analytic difficulty derives from the plete that picture is. The story of immi- implicitly, often explicitly, about race. fact that, in reality, these features are grant children has deep implications It was one thing to learn that poverty usually bundled together; the question for the rest of us. On their shoulders persisted in the hollows of Appalachia; is how to unpack the relationship, and may rest the health of some of our quite another, it appeared, to be told then specify how one factor influences nation’s cities, as they become, in terms that poverty afflicted a disproportion- the next. of their sheer numbers, our economic ate number of African Americans, and This is the agenda tackled by Stier and political bulwark in future years. even more so, those who lived in and and Tienda in their ambitious and The story of the second generation is in around cities. Needless to say, argu- important new book. To understand a sense, then, our story, and it is up to ments about the “culture of poverty” poverty, they argue, one needs to us what the ending will be. took on an entirely different tone identify the routes by which people when the poor people in question also fall into that state. Events in an indi- DR. VIVIAN LOUIE IS A HARVARD FELLOW turned out to be black. vidual’s life—a failure to finish high ON RACE, CULTURE, AND EDUCATION AT In policy terms, it takes no score- school; a teenage pregnancy; forming THE HARVARD GRADUATE SCHOOL OF card to know who’s won the debate, as a family without marriage—make EDUCATION. the name of our last major piece of impoverishment a likely fate, at least welfare reform—“Personality Respon- for some period of time. But these sibility Act”—tells it all. But outside events often occur in a context over the corridors of Congress, the discus- which the individual has little control: Why the Poor Stay Poor sion, albeit in muted terms, burbles after all, one doesn’t choose one’s own on. For the moment, it may all have parents. Growing up in a poor house- Review of The Color of Opportunity: an academic feel, as the tide that rose hold or one where there’s only one Pathways to Family, Welfare, and during the 1990s eventually lifted parent increases all of the subsequent Work by Haya Stier and Marta many boats. But the ways of the econ- risk factors. And one misstep in the Tienda omy often prove fickle: should Amer- early stage of adult life and long-term Reviewed by Roger Waldinger ica slip into a serious recession, then trouble follows: you don’t finish high the fortunes of the poor may take a school, and it’s hard to get an ade- The affluent society discovered the significant turn for a worse—but this quate, stable job, producing an erratic other America more than four decades time, with much thinner a safety net work record that persistently makes ago. Ever since, the United States has than before. In that case, the continu- you an unattractive recruit. been locked in debate over poverty ing considerations of experts will turn Stier and Tienda take this perspec- and its possible causes and cures. For out to be relevant, assuming, of tive and apply it to a set of data that those who have been paying atten- course, that anyone in power cares to is uniquely suited to explore their tion, the controversy is not only end- ask for their advice. concerns. Poverty seems most in- less, but never quite seems to change. As it happens, the experts really do tractable, and politically most explo- In the vision lying behind the war on have something to say. While ideology sive, in its big-city form. It is in that poverty, the problem lay in the condi- hasn’t disappeared from the halls of setting that Stier and Tienda find their tions that the poor encountered: academe, contemporary scholars have most basic raw materials, drawing on change their circumstances, through taken the pains to learn from their William Julius Wilson’s Urban Poverty job creation and training, and Amer- mistakes of their predecessors. They’ve and Family Life Study, a survey of ica’s impoverished would seize the also moved well beyond earlier, more 2,490 residents of poor neighborhoods chance, moving ahead on their own. simplistic formulations of the prob- in Chicago. Since poor neighborhoods

82 Civil Rights Journal / Winter 2002 B OOK R EVIEWS house people of varying class back- at any one point in time compounded whites, even after taking into account grounds, that design choice is crucial, by earlier failures to develop the right background experiences and circum- ensuring that the survey takes in the work history. stances. Whether in Chicago or else- comfortably middle class, along with With few exceptions, it’s all much where, whether men or women, a birth those Chicagoans living in circum- harder in Chicago, where deindustrial- outside marriage was far likelier to stances that are the bleakest of the ization has destroyed the job market for occur among African American respon- bleak. Design as well as the choice of the low-skilled and hypersegregation dents than among whites. In Chicago, place yield another axis of variation, as has left black Chicagoans severely iso- black men and women were also more Chicago represents the emerging lated from everyone else, to follow the likely to report recent welfare use than shape of American life, containing not analyses of William Julius Wilson and were whites, even after differences in just black and white, but sizeable pop- Douglas Massey. Chicago is just a bad family structure, past and present, or ulations originating in Puerto Rico and place to get started: as compared with education had been set aside. But as no Mexico as well. To widen the focus and other urban residents, Chicagoans are such disparity emerged in the national highlight any factors that might make sample, or even among a subsample of Chicago a special, rather than exem- poor urban women, Stier and Tienda plary case, Stier and Tienda bring in a SHOULD AMERICA SLIP INTO conclude that the Chicago results large-scale, contemporaneous sample A SERIOUS RECESSION, THEN reveal something distinctive about the of urban residents nationwide. The Windy City—namely its high level of two surveys provide a neat parallel, as THE FORTUNES OF THE POOR racial segregation—and not an attrib- both use current as well as retrospec- ute characteristic of the black popula- tive data, allowing Stier and Tienda to MAY TAKE A SIGNIFICANT tion nationwide. And as regards the trace the pathways by which earlier TURN FOR THE WORSE—BUT other outcomes of interest—dropping events led to the life course that their out of high school and participating in respondents eventually followed. WITH A MUCH THINNER the labor force—Stier and Tienda find Armed with the right raw materials, that blacks don’t differ from whites at Stier and Tienda then crunch the num- SAFETY NET THAN BEFORE. all, once the analysis has controlled for bers. They provide devotees of the earlier life experiences. quantitative arts with supporting evi- more likely to have dropped out of high All of which is not to say that other dence in the form they like, but do so school; unlike the pattern nationwide, intergroup differences don’t matter. in appendices, allowing graphs and growing up with one or two parents Like other major metros, Chicago’s words to do most of the work in the makes little difference in this regard. minority population is taking an text. And while careful writing about Teen parenthood without marriage is increasingly Hispanic tilt. The two numbers is never an easy task, Stier and also much likelier in Chicago than in Latino groups studied by Stier and Tienda deliver the message in a clear, other urban places; once again, the local Tienda—Mexicans and Puerto straightforward, and readily compre- effect of structure in the family of origin Ricans—don’t look like blacks or hensible way. proves much weaker, especially for whites; nor do they appear identical to Put simply, perhaps simplistically, men. And finding a job is tougher in one another. Stier and Tienda’s picture the story they tell is one in which trou- Chicago than elsewhere, where job- of the conditions experienced by bles, once encountered, rarely go away. holding experience has a weaker payoff Puerto Ricans does not look particu- Start out in a poor, broken family and a than in other big cities, and women larly pretty. Accepted as labor migrants parent with little education, and one is who’ve been out of work have virtually a half century ago, the Puerto Ricans at significant risk of not finishing high no chance of finding an employer will- have long since worn out whatever lit- school by the time one turns 19. The ing to put them on a payroll. tle welcome they then received. In same factors increase the likelihood of But the politics of poverty, and of Chicago, they fall into trouble, relative having a child out of wedlock, to poverty research, have been especially to comparable native whites, on sev- which one now adds the liability asso- polarized by their intersection with the eral counts—high school completion, ciated with failure to get the high politics of race. For that reason, Stier out-of-wedlock births, and welfare school degree. Likewise for the possibil- and Tienda’s lessons regarding inter- usage—a pattern that’s especially dis- ity of recent welfare utilization, where group differences are sure to garner par- tressing since each source of disadvan- the long hand of the past often leads ticular attention: in their study, the tage brings on another. persons brought up in households with effects of ethnic or racial group mem- The Mexicans provide a rather dif- an extensive history of welfare utiliza- bership largely disappear once one has ferent story, at least for now. Stier and tion to repeat the pattern as adults. The controlled for disparities in early life Tienda’s data show that members of same set of problems makes it harder to experiences. On only one count do this group are much likelier than get a job, with employment difficulties blacks appear clearly different from whites to drop out of high school—

Winter 2002 / Civil Rights Journal 83 B OOK R EVIEWS though as Chicago’s Mexicans are a one can anticipate the riposte: isn’t quite consistent. There is also the mat- mainly foreign-born population, com- cumulative causation just another ter of how to interpret the relative ing from a country where school usu- word for “culture of poverty,” with importance of intergroup differences. ally ends after grade 7, it’s probably Stier and Tienda telling us that the One can’t quarrel with Stier and Tienda more accurate to say that they never poor lock themselves into their own if one keeps the focus on blacks and dropped in. This liability notwith- fate? But Stier and Tienda’s argument whites. But if one asks about the num- standing, few other sources of trouble involves a contention about pathways ber of domains in which one observes appear: Mexican men and women are and their consequences: though influ- at least one important intergroup dif- no more likely than whites to become enced by poverty, it is the pathway ference—controlling for earlier experi- parents out of wedlock; by contrast, chosen that exercises the long-term ences—then the weight of earlier expe- Mexican women are more likely than effect. By contrast, a cultural argument riences, as such, doesn’t seem to be whites to become parents through involves something else: a demonstra- quite so great. marriage. Furthermore, Mexican men tion that the poor view the world This reader is also not fully com- and women are less likely than com- through a distinctive lens, and there- fortable with the way in which Stier parable whites to experience recent use fore, act differently from others. And and Tienda handled the one clear line of welfare. That the Mexicans should any effort to ascribe behavior to the of distinction between blacks and look so distinctive is not difficult to culture of the poor would also have to whites—namely, the greater likeli- understand: after all, one doesn’t get inquire into the culture of the non- hood that African American teens will to el norte without kin and friends, poor—whose views of, and behavior bear a child outside of marriage, as already in place and who are prepared toward, the impoverished are as cul- compared with whites. Yes, having a to help out. The network also connects tural as anything else, and surely are child out of wedlock has a negative Mexicans to more cohesive inner-city not without effect. effect on a range of outcomes across neighborhoods, which turn out to be Some readers may find the style of all groups. But is its impact on African different places than the severely analysis off-putting, notwithstanding Americans simply due to its greater impoverished neighborhoods in the authors’ efforts to write a user- prevalence—or does the response to which many blacks live. And Stier and friendly book. The quantitative arts, as out-of-wedlock births take a different Tienda provide enough evidence to applied social science style, will simply form among members of this group as keep Pollyanna still: contrasted to not appeal to all tastes. One can already well? And one can’t help but note the comparable whites in poor neighbor- hear those of different methodological tone of special pleading that creeps hoods, the Mexicans are doing OK. But persuasions complaining that the book into the discussion, when Stier and then again, they’re not quite compara- takes a mechanistic approach, treating Tienda try to explain the stronger ble, as the Mexicans have such low the “subjects” it analyzes as if they were racial effects in Chicago as opposed to skills, for which they pay considerable balls in a billiards game, as opposed to the national sample. penalty in the low wages they earn. real-live, thinking, feeling people mak- But these are surely minor com- In the end, of course, no fact can ing decisions on their own. Perhaps plaints, not worthy of distracting kill a theory—not even as impressive they’re not entirely wrong. But it’s attention from this book’s many an assemblage as the one that Stier never fair to fault the authors for the strengths. The Color of Opportunity is a and Tienda have gathered. The poli- book they didn’t write. Like any other, skillful demonstration of the best that tics of poverty are such that ideologi- this book needs to be evaluated on its social science can do, using the latest cal commitments make it hard to own terms—in which case, there can’t tools, and applying them to the type change minds: I doubt that a reading be any question about the nature of the of hard-won evidence best suited for of this book will lead advocates of the accomplishment. the question at hand. Of course, culture of poverty—or is it the culture While waiting for controversy to knowledge is no more than that, leav- of blame?—to look at the matter in a erupt, however, the friendly critic can ing the problem just as it was when different light. But if resistant to per- issue a few quibbles of his own. In gen- the authors wrote. But one can’t get suasion, they should still be able to eral, Stier and Tienda persuade that anywhere, if one doesn’t know where appreciate this book’s many virtues. intergroup differences, in and of them- one’s going. For their contribution to Linking past and present, as Stier and selves, are of little, if any, import. But understanding America’s thus far Tienda have done, is no small feat: the terminology is occasionally confus- intractable poverty dilemma, the surely, even unfriendly critics can ing. It’s a bit disconcerting, in a book authors of this outstanding book have agree that poverty is at least partly the entitled The Color of Opportunity, to both students of poverty, and advo- result of cumulative causation, which learn that “racial differences” are only cates of change, in their debt. C R is why unraveling the circle, as these those concerning blacks and whites; it’s authors have done, is the only way to also bothersome to do cross-checking ROGER WALDINGER IS PROFESSOR AND achieve intellectual results. To be sure, when it turns out that the usage is not CHAIR OF SOCIOLOGY AT UCLA.

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