Tuesday, September 26, 2017

Nancy Leong

Nancy Leong, Racial Capitalism, 126 Harvard Law Review 2151-2226 (June, 2013) (374 Footnotes Omitted)


“Usually things like this are done by white people to benefit themselves.”

A white man posts an ad on Craigslist explaining that he wants to make black friends. A political figure accused of racial indifference casually Nancy Leongrefers to a black friend while addressing the NAACP. Administrators at a predominantly white university, concerned that prospective 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. A predominantly white company, facing an array of lawsuits alleging race discrimination, aggressively recruits and hires nonwhite employees in order to create a track record of minority representation.

Each of these incidents involves what I will call racial capitalism--the process of deriving social or economic value from the racial identity of another person. 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 in which a white individual or a predominantly white institution derives social or economic value from associating with individuals with nonwhite racial identities. Such racial capitalism is common. In a society preoccupied with diversity, nonwhiteness is a valued commodity. And where that society is founded on capitalism, it is unsurprising that the commodity of nonwhiteness is exploited for its market value.

This Article is the first to identify racial capitalism as a systemic phenomenon and the first to describe the way that white people and predominantly white institutions derive value from nonwhiteness. Of course, assigning value to race is nothing new in America. Whiteness has been a source of value throughout our history, conferring power and privilege on the possessor. For centuries, American courts explicitly recognized the value of whiteness--for example, numerous courts held that calling a white person “black” constituted defamation and therefore qualified for legal redress. Litigants have also acknowledged the value of whiteness--for example, in Plessy v. Ferguson, Homer Plessy referred to the perception of his whiteness as the “most valuable sort of property . . . the master-key that unlocks the golden door of opportunity.” And scholars have examined the value of whiteness--for example, Cheryl Harris's acclaimed work Whiteness as Property posits that whiteness is a kind of “status property” that can be both analogized to conventional forms of property and literally converted to those forms.

Nonwhiteness has been valued differently and more ambiguously. The practice of using nonwhiteness as a justification for the commodification of nonwhite individuals is older than America itself, as our bitter history of slavery demonstrates. For centuries, nonwhiteness was used as a basis for withholding value by denying nonwhite people legal rights and privileges. More recently, however, nonwhiteness has been considered a source of value; decisions such as Regents of the University of California v. Bakke and Grutter v. Bollinger have validated affirmative action programs in the interest of fostering racial diversity in colleges and universities. This rationale both reflects and reifies the premium that privileged segments of American society place upon diversity, both within and beyond institutions of higher education. In part as a result of judicial action, nonwhiteness has acquired a new sort of value. We have internalized the idea that racial diversity is a social good, and as a result, we assign value to the inclusion of nonwhite individuals in our social milieu, our educational institutions, and our workplaces. Nonwhiteness has therefore become something desirable--and for many, it has become a commodity to be pursued, captured, possessed, and used.

To be clear, I see nothing inherently problematic in encouraging racial diversity within social groups and formal institutions, and I am convinced that such diversity is a necessary prerequisite to improving racial relations in America. The efforts of colleges and universities, employers, and other institutions to promote racial diversity should be celebrated, not disparaged. But problems with racial capitalism arise when white individuals and predominantly white institutions seek and achieve racial diversity without examining their motives and practices. Striving for numerical diversity, without more, results in awareness of nonwhiteness only in its thinnest form-- as a bare marker of difference and a signal of presence. This superficial view of diversity consequently leads white individuals and predominantly white institutions to treat nonwhiteness as a prized commodity rather than as a cherished and personal manifestation of identity. Affiliation with nonwhite individuals thus becomes merely a useful means for white individuals and predominantly white institutions to acquire social and economic benefits while deflecting potential charges of racism and avoiding more difficult questions of racial equality. This instrumental view is antithetical to a view of nonwhiteness--and race more generally--as a personal characteristic intrinsically deserving of respect. Worse still, the instrumental view of nonwhiteness inhibits efforts at genuine racial inclusiveness and cross-racial understanding.

The irony, then, is that our legal and social emphasis on diversity--while intended to produce progress toward a racially egalitarian society--has instead in many cases contributed to a state of affairs that degrades nonwhiteness by commodifying it and that relegates nonwhite individuals to the status of “trophies” or “passive emblems.” Racial capitalism frequently does not benefit the nonwhite individuals whose identities are the source of capital, nor does it necessarily benefit society as a whole.

Racial capitalism is troubling on both a symbolic and a practical level. When white people and predominantly white institutions commodify nonwhiteness and exploit its value, even under the auspices of a well-intentioned diversity rationale, racial capitalism evokes one of the darkest eras in American history, during which nonwhiteness--and nonwhite human beings--were assigned value and transferred among white people as commodities. Racial capitalism also forecloses progress on a practical level, both by inflicting identity harms on nonwhite individuals and by displacing substantive antidiscrimination reform. We should therefore decline to engage in racial capitalism and should instead develop more meaningful mechanisms for improving racial relations in America.

The Article begins in Part I with an examination of the value assigned to race. Throughout American history, whiteness has provided social and economic value to those who possess it; this trend continues today. For much of this history, nonwhiteness has had the opposite effect, diminishing one's status and, for centuries, marking one's person as suitable for possession by whites. More recently, affirmative action doctrine has initiated a legal and social preoccupation with diversity, which has conferred a certain value upon nonwhiteness. The irony, however, is that the value of nonwhiteness is still largely measured by its worth to white people and predominantly white institutions.

Part II analyzes this dynamic of racial value through the lens of capital. I draw from both the Marxian conception of capital and more recent research on social capital and status markets to develop a framework for understanding the way that race is used and valued in American society. I call this framework racial capitalism. As I use the term, racial capitalism is the process of deriving economic and social value from the racial identity of another person. While any racial identity might be commodified and exchanged in a manner that generates capital, my focus in this Article is on the way that nonwhiteness is capitalized as a consequence of the preoccupation with diversity. Thus, the form of racial capitalism with which I am most concerned is one in which white individuals or predominantly white institutions exploit relationships or affiliations with nonwhite individuals in order to accumulate for themselves the capital associated with nonwhiteness. Acquiring such racial capital involves an underacknowledged exchange--for example, a white individual or predominantly white institution might offer a nonwhite individual social status, friendship, goodwill, professional advancement, prestige, monetary compensation, tangible goods, or any number of other benefits in return for the capital derived from the affiliation.

Part III raises serious concerns regarding racial capitalism and the commodification of nonwhiteness. I lay the groundwork for my critique by discussing the theoretical literature on commodification. I then turn to the commodification of race. Commodification of racial identity precedes and enables racial capitalism, but racial capitalism instantiates the commodification of race and intensifies its harms. One set of concerns with commodification relates to the harm that nonwhite individuals suffer. That is, commodification damages the integrity of individual identity, demands certain types of identity performance, and results in tangible material harm. Another set of concerns involves broader social harms. That is, commodification of racial identity impoverishes our discourse around race, fosters racial resentment by inhibiting the reparative work essential to improved racial relations, and detracts from more meaningful antidiscrimination goals by prioritizing racial representation at its thinnest and most tokenistic. These serious concerns lead to my conclusion that racial capitalism is a net loss for everyone.

Part IV offers a way forward. In an ideal world, racial capitalism and the commodification of nonwhiteness it entails would not occur. But in our imperfect world, still tarnished by the stain of racism, an immediate, wholesale decommodification of identity would be unfeasible and would have the negative consequence of freezing current racial hierarchies as they now exist. I therefore offer a pragmatic proposal entailing a transition period of limited commodification. During this transition, we should discourage racial capitalism. But when racial capitalism does occur, we should respond to it by explicitly identifying it, calling attention to its harms, and ensuring that the transaction of racial value is structured in a way that discourages future racial capitalism. The Article concludes with some thoughts about how we might preserve our commitment to the worthy aspects of diversity while avoiding the perils of racial capitalism.

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