Yes, but on what? “Discriminating? Yes. Discriminatory? No,” an article in the Arts section of the New York Times, tries to answer that question in the course of discussing a new book by Frederick Schauer of Harvard, Profiles, Probabilities, and Stereotypes (Harvard, 2003).
The article reveals — sometimes intentionally, sometimes not — the slippery contradictions and inconsistencies exhibited by many commentators trying to traverse the treacherous mine field that is discrimination theory these days.
Schauer’s book looks as though it will be interesting. According to the article, he
was reading about some dog lovers who claimed “canine racism” in response to measures to curb attacks by pit bulls in New York City.
That particular race card, he said, was an extreme example of how society has become so obsessed with avoiding any stereotypes that it ignores reality. Pit bulls are more aggressive than other breeds, he said, just as statistics show older people have slower reflexes than the young, and there are more bad drivers in Massachusetts than in Vermont. A fair number of generalizations, he insists, turn out to be accurate.
But so what?
Mr. Schauer stressed that he did not support bias of any kind and did not believe that empirical evidence alone should be the driving force behind creating categories. Rather, he said in an interview, he longs for a more sophisticated appreciation of the difference between generalizations based on information that helps society make rules and laws and those generalizations that are spurious or harmful. The sorting can be done, he said, by taking into account history, morality and the social impact of the generalizations.
“We’ve learned too much from history and too much from social science to assume we look at all categories the same,” Mr. Schauer said. “One of the nice things about generalizations is that they are frequently temporal and based on real data and are out there for the public to inspect.”
For instance, using race in creating a profile of a criminal, he said, is far different from the police randomly stopping and harassing black motorists on the highway. One use is legitimate, one use constitutes bias.
But what if the police were not “randomly” stopping black motorists, but, based on a profile, were stopping only young black men driving expensive foreign cars? Would that be legitimate if the profile were accurate? What does “accurate” mean in this context; how accurate is accurate? I’m not sure what Schauer would say, but I look forward to finding out.
A comment from sociologist Cynthia Fuchs Epstein nicely reveals some of the confusion that is rampant in discussions of discrimination.
The important question is, Ms. Epstein said, for what purpose do we generalize? Is it to legitimately order the way we live or to keep some people in control? ….
Too many statistics are derived from bad research, Ms. Epstein added, and statistics can be variously interpreted. Her book “Deceptive Distinctions: Sex, Gender and the Social Order” (Yale University Press, 1990) argues that much gender research reflects social control and ideology more than science. “When you say men on average make more money than women, it could be that women work part time or they work fewer hours or they face discrimination,” she said.
“It’s very difficult because stereotypes can come from social science that can come from inadequate data.
But if it is true that men on average make more money than women, where is the “stereotype”? True, there could be any number of explanations, going way beyond women working part time or fewer hours or being victims of discrimination. Women could, on average, have been in the workforce a shorter time than men, on average. They could be more heavily represented in occupations that don”t pay as well. They could, on average, forego more job opportunities than men in order to work closer to home. All these possibilities, and more, deserve (and have received) research, and they surely could help explain why it is that men on average make more money than women. Epstein’s statement, however, is a non-sequitur, since the possible explanations of the fact don’t somehow turn the fact into a “stereotype.”
Equally confusing, as usual, and troubling, is a comment form Harvard law professor Randall Kennedy. Although many commentators attempt to argue that the discrimination of which they approve is not really discrimination, Kennedy to his credit is too honest for that. “Affirmative action,” Kennedy is quoted as saying, “is a type of ‘racial discrimination’ that he supports.” (Note the quotes around “racial discrimination,” presumably indicating the article author’s attempt to distinguish affirmative action from what she would regard as real racial discrimination.)
At some personal cost Kennedy has been bluntly outspoken in opposition to “taking race into account” across a whole range of issues (jury selection and adoption, to name just two), and he has even written a widely quoted article (“My Race Problem–And Ours” (Atlantic Monthly, May 1997) arguing against racial pride and even racial identification, preferring instead the classically liberal “unencumbered self.” And yet on occasion, as here, he can endorse what he recognizes as racial discrimination. For these reasons, among others, I find his views fascinating, and wrote an earlier post entitled “The Inscrutable Randall Kennedy” in a failed attempt to sort them out. That post is one of my favorites, and I encourage you to go read all of it. But since I know many of you won’t, I reproduce here a string of quotes from some of Kennedy’s writings that will, I think, justify my confusion about his acceptance of the “racial discrimination” of affirmative action:
- I disapprove of most forms of public affirmative action myself, on the premise that public authorities shouldn’t be permitted to allocate burdens and benefits on racial grounds in the absence of an absolute emergency. (Reviewing Abigail and Stephan Thernstrom, America in Black and White in SLATE, 10/14/1997)
- Opposing restrictions on cross-racial adoptions… under our law, the drawing of racial distinctions, particularly by government officials, is and should be presumptively illegitimate…. Typically … , our legal system rightly prohibits authorities from making decisions on the basis of racial generalizations, even if the generalizations are accurate.
[Opposing the Metzenbaum bill, which “expressly permits an (adoption) agency to ‘consider the race, color, or national origin’ of a child as a factor in making a placement decision”]: This state of affairs is, quite simply, a political disaster–at least for integrationists like me who view the anti-racialist impulse of the civil rights movement circa 1963 as the great guiding sentiment around which struggles for racial justice should continue to cohere. Whether or not they recognize it, many liberals have abandoned their commitment to creating a society in which racial difference withers away into moral insignificance. Instead, often marching under the banner of “diversity,” they have acquiesced to measures that are moving us toward a society in which one’s racial background is deemed to have a definite, positive, moral meaning that the government officially recognizes, reinforces, and celebrates. (“Orphans of Separatism,” The American Prospect, Spring 1994)
- Opposing required racial balance on juriesI’m against the deployment of racial distinctions in the law to create racially mixed juries. I’m for a strong and vigorously enforced anti-discrimination norm so that nobody is excluded on a racial basis. After that, I say, that’s enough. (Interview with Mother Jones, July 1997)
- Opposing racial profiling by policeTaking race into account at all means engaging in racial discrimination. [This follows several paragraphs where Kennedy takes issue with those who argue that lack of a bad intent, or the presence of non-discriminatory motives, or even the reasonableness of the action can justify taking race into account.]
A disturbing feature of the debate over racial profiling is that many people, including judges, are suggesting that decisions distinguishing between persons on a racial basis do not constitute unlawful racial discrimination when race is not the sole consideration prompting the disparate treatment…. This dilution of the meaning of discrimination is troubling not only because it permits racial profiling to continue…. Even worse, this concession will likely seep into other areas of racial controversy, causing mischief along the way. [“Will likely seep???? Hellloooo. Looked at admission policy lately? — jsr] … individuals should be judged by public authority on the basis of their own conduct and not on the basis–not even partly on the basis — of racial generalization.
[Politicians must do more than end bigotry.] They must be willing to demand equal treatment before the law even under circumstances in which unequal treatment is plausibly defensible in the name of nonracist goals. (“Suspect Policy,” The New Republic, Sept. 20, 1999)
By accepting what he admits is racial discrimination by the one institution of which he is a member, i.e., the university, Kennedy is in the awkward position of arguing that his own institution should be exempt from the rule that should apply elsewhere. Many diversiphiles would be untroubled by this inconsistency (they, after all, are not inconsistent; they would favor racial preferences everywhere), but Kennedy, as one of his quoted statements above reveals, seems to have little use for the “diversity” exception.
It’s all very confusing. Maybe that’s why I like simple, clear, bright-line rules: race and religion should never the basis for official burdens or benefits.
