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Article Racial Capitalism VOLUME 126 JUNE 2013 NUMBER 8 © 2013 by The Harvard Law Review Association ARTICLE RACIAL CAPITALISM Nancy Leong CONTENTS INTRODUCTION .......................................................................................................................... 2153 I. VALUING RACE ................................................................................................................... 2158 A. Whiteness as Property .................................................................................................... 2158 B. Diversity as Revaluation ................................................................................................ 2161 C. The Worth of Nonwhiteness .......................................................................................... 2169 II. A THEORY OF RACIAL CAPITALISM .............................................................................. 2172 A. Race as Social Capital .................................................................................................... 2175 B. Race as Marxian Capital ............................................................................................... 2183 C. Racial Capitalism ............................................................................................................ 2190 III. CRITIQUING RACIAL CAPITALISM ................................................................................. 2198 A. Commodification ............................................................................................................. 2199 B. Harm to Nonwhite People ............................................................................................. 2204 1. Fractured Identity ..................................................................................................... 2204 2. Performance Demands .............................................................................................. 2207 3. Economic Disadvantage ........................................................................................... 2210 C. Harm to Society .............................................................................................................. 2213 1. Impoverished Discourse............................................................................................ 2213 2. Racial Resentment ..................................................................................................... 2215 3. Displaced Reform ...................................................................................................... 2217 IV. A WAY FORWARD ............................................................................................................... 2220 CONCLUSION ............................................................................................................................... 2225 2151 RACIAL CAPITALISM Nancy Leong∗ Racial capitalism — the process of deriving social and economic value from the racial identity of another person — is a longstanding, common, and deeply problematic practice. This Article is the first to identify racial capitalism as a systemic phenomenon and to undertake a close examination of its causes and consequences. The Article focuses on instances of racial capitalism in which white individuals and predominantly white institutions use nonwhite people to acquire social and economic value. Affirmative action doctrines and policies provide much of the impetus for this form of racial capitalism. These doctrines and policies have fueled an intense legal and social preoccupation with the notion of diversity, which encourages white individuals and predominantly white institutions to engage in racial capitalism by deriving value from nonwhite racial identity. Racial capitalism has serious negative consequences both for individuals and for society as a whole. The process of racial capitalism relies upon and reinforces commodification of racial identity, thereby degrading that identity by reducing it to another thing to be bought and sold. Commodification can also foster racial resentment by causing non- white people to feel used or exploited by white people. And the superficial process of assigning value to nonwhiteness within a system of racial capitalism displaces measures that would lead to meaningful social reform. In an ideal society, racial capitalism would not occur. Given the imperfections of our current society, however, this Article proposes a pragmatic approach to dismantling racial capitalism, one that recognizes that progress must occur incrementally. Such an approach would require a transition period of limited commodification during which we would discourage racial capitalism. Moreover, we would ensure that any transaction involving racial value is structured to discourage future racial capitalism. I briefly survey some of the various legal mechanisms that can be deployed to discourage racial capitalism through limited commodification. Ultimately, this approach will allow progress toward a society in which we successfully recognize and respect racial identity without engaging in racial capitalism. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Assistant Professor, University of Denver Sturm College of Law. I am grateful for the sup- port of my home institution — the University of Denver Sturm College of Law. This Article ben- efited greatly from presentations both there and at the Columbia Legal Theory Workshop, the Cumberland School of Law Faculty Colloquium, the Florida State University Faculty Colloqui- um, the University of Iowa School of Law Faculty Colloquium, the University of Pennsylvania School of Law Faculty Colloquium, the University of Texas School of Law Faculty Colloquium, the UCLA School of Law Faculty Colloquium, the UCLA Critical Race Theory Workshop, and the Sixth Annual Labor and Employment Law Colloquium. While I received useful comments from too many wonderful colleagues to name individually, for particularly helpful thoughts and feedback, I thank Devon Carbado, Alan Chen, Owen Davies, Justin Driver, Nancy Ehrenreich, Elizabeth Emens, Jorge Esquirol, Ian Farrell, Charlotte Garden, Laura Gomez, Cheryl Harris, Beto Juárez, Jennifer Laurin, Sophia Lee, Angela Onwuachi-Willig, Justin Pidot, Kermit Roosevelt, Camille Gear Rich, Patrick Shin, Joyce Sterling, and Eli Wald. Kira Suyeishi provided truly extraordinary research assistance. 2152 2013] RACIAL CAPITALISM 2153 INTRODUCTION sually things like this are done by white people to benefit them- “Uselves.”1 A white man posts an ad on Craigslist explaining that he wants to make black friends.2 A political figure accused of racial indifference casually refers to a black friend while addressing the NAACP.3 Ad- ministrators at a predominantly white university, concerned that pro- spective students will be deterred by the school’s racial homogeneity, authorize the use of Photoshop to add a black student to the photo on the cover of the university’s application brochure.4 A predominantly white company, facing an array of lawsuits alleging race discrimina- tion,5 aggressively recruits and hires nonwhite employees in order to create a track record of minority representation.6 Each of these incidents involves what I will call racial capitalism — the process of deriving social or economic value from the racial identi- ty of another person.7 A person of any race might engage in racial capitalism, as might an institution dominated by any racial group. But in this Article, my focus is on the version of racial capitalism ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Alex Haley, Playboy Interview: Malcolm X, PLAYBOY, May 1963, at 53, 57 (quoting Malcolm X). 2 Devin Friedman, Will You Be My Black Friend?, GQ, Nov. 2008, at 185, available at h t t p : / / w w w . g q . c o m / n e w s - p o l i t i c s / m e n s - l i v e s / 2 0 0 8 1 0 / d e v i n - f r i e d m a n - c r a i g l i s t - o p r a h - b l a c k - w h i t e -friends-obama. 3 Sheryl Gay Stolberg, In Speech to N.A.A.C.P., Bush Offers Reconciliation, N.Y. TIMES, July 21, 2006, at A16, available at http://www.nytimes.com/2006/07/21/washington/21bush.html. 4 William Claiborne, School’s Diversity Too Good to Be True, S.F. CHRON., Sept. 21, 2000, at A2, available at http://www.sfgate.com/education/article/School-s-Diversity-Too-Good-to-Be-True -2737946.php. 5 See Wal-Mart Settles Lawsuit on Hiring, N.Y. TIMES, Feb. 21, 2009, at B2, available at http://www.nytimes.com/2009/02/21/business/21walmart.html; Press Release, Maumelle Med. Clinics, Inc., Racial Discrimination Action Against Wal-Mart Trial Date Set (Nov. 21, 2009), available at http://www.prnewswire.com/news-releases/racial-discrimination-action-against-wal - m a r t - t r i a l - d a t e - s e t - p r e - t r i a l - t e s t i m o n y - s h o w s - w a l - m a r t - s p i e d - o n - a f r i c a n - a m e r i c a n s - a t - i n - s t o r e -clinic-says-maumelle-medical-clinics-ceo-jerry-poole-134230188.html. 6 While of course outsiders cannot know the true reason underlying any company’s interest in increasing its racial diversity, in some instances those reasons correlate with negative publicity relating to discrimination lawsuits. Compare Wal-Mart Settles Lawsuit on Hiring, supra note 5 (discussing lawsuit initiated in 2004), with Press Release, Wal-Mart Stores, Inc., Wal-Mart Details Progress Toward Becoming a Leader in Employment Practices (June 4, 2004), available at http:// w w w . p r n e w s w i r e . c o m / n e w s - r e l e a s e s / w a l - m a r t - d e t a i l s -
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