In opposition to a bill in the California State Senate allowing public universities and colleges to consider race, gender, ethnicity and national origin in admissions, the College Republicans of UC Berkeley held a bake sale yesterday.  Charging sweet-toothed patrons different prices based on their race and gender – whites paying the most, with “discounts” for other races and an additional “discount” for women – the College Republicans claim they were just trying to demonstrate how unfair it is that everyone but white men are given preferential treatment because of their race or gender.

Wow.  This post isn’t going to address arguments for or against affirmative action programs.  Readers can find that elsewhere.  Instead this post will focus on the underlying assumption driving the students’ bake sale – that people in this country no longer face barriers to entry for higher education, jobs, etc., based on their race or gender.  First, this assumption is wrong.  After facing litigation for sex discrimination, even Wal-Mart seems to admit that women don’t have equal opportunities in business simply because they are women.  There’s also been much debate over the neutrality of standardized college admissions tests, like the SAT.  But more importantly than the fact that the assumption is wrong, is that its existence has infected United States race and sex equality jurisprudence, and prevented gains in real equality.

The most recent example comes just this year, in Wal-mart v. Dukes.  Writing for the majority, Justice Scalia addressed plaintiffs’ claims that local managers’ discretion had led to sex discrimination in promotion decisions by asserting that “left to their own devices most managers in any corporation – and surely most managers in a corporation that forbids sex discrimination – would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.”  It’s definitely true that not all managers discriminate in promotion decisions.  However, to start with the assumption that discrimination only occurs in outliers, in one in a million managers who openly tells someone “I’m not promoting you because you’re black/hispanic/female/<insert race, ethnicity, nationality here>,” is to already have lost the battle.  The plaintiffs in the case presented several pieces of evidence showing regional and national disparities between women and men in company promotions.  Yet, Scalia asserted that without knowing whether it was 95% of managers who discriminated or .5% of managers, he was going to give the culture of Wal-Mart the benefit of the doubt.  But, bias and stereotypes unconsciously affect many of the judgments people make about members of other races and genders.  (CR-CL published a great article on unconscious bias in 2005.)  Just because discrimination is no longer always explicit, doesn’t mean systemic discrimination has been eradicated.

So why do judges and others in the United States cling so tightly to the idea that discrimination is no longer mainstream?  With this country’s history of – and contemporary – problems of discrimination and subordination, how can one truly believe we have achieved real equality?  Perhaps no one does believe it.  Instead, it might be that to admit, through no fault of their own, not everyone has the same opportunity to attend higher education, receive job promotions, or get hired in the first place, is to admit that the United States may not be the place where folks can “pull themselves up by their own bootstraps.”  How disruptive it would be to the entire notion of the US as the  “land of opportunity” to admit that there is systemic discrimination preventing advancement.  But it needs to happen.  If we’re ever going to adopt an approach to equality law that truly promotes equality, our jurisprudence must recognize the systemic discrimination that still exists.  It’s like addiction – the first step to recovery is admitting you have a problem.

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The Harvard Civil Rights-Civil Liberties Law Review (CR-CL) is the nation’s leading progressive law journal. Founded in 1966 as an instrument to advance personal freedoms and human dignities, CR-CL seeks to catalyze progressive thought and dialogue through publishing innovative legal scholarship and from various perspectives and in diverse fields of study.

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