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excerpted from: Camille Gear Rich, Marginal Whiteness, 98 California Law Review 1497 (October, 2010) (302Footnotes) (Full Document)


Camille Gear RichHow are whites injured by minority-targeted racism? Prior to filing her Title VII interracial solidarity claim, Betty Clayton thought she knew. For years, Clayton, a white cafeteria worker employed by the White Hall School District, was granted a nonresidency privilege that allowed her to enroll her daughter in one of the district's schools. This was a special arrangement, as neither she nor her daughter lived within the district's boundaries. This special arrangement abruptly came to an end when one of Clayton's black coworkers learned that she had been given the nonresidency privilege and asked the district for the same benefit. The district refused the black worker's request and, to rebut any claim of racial favoritism, rescinded Clayton's right to the privilege as well. The district then reinstituted an old rule that provided that only “teachers” and certified “administrative” workers were entitled to the nonresidency benefit, thereby ensuring that both Clayton and her black co-worker were ineligible. Clayton found herself the victim of what she believed was an obvious case of explicit racial bias.

Was Clayton a victim of race discrimination? Her claim may give some readers pause. Some might conclude that she was not subject to race discrimination, arguing instead that she was merely a secondary victim that fell prey to “friendly fire”--a white casualty incidentally injured by the district's attempt to discriminate against her black coworker. Others might share Clayton's view, arguing that she was a victim of discrimination. But for the district's desire to discriminate against her black coworker, the district would not have reinstated the stricter benefits rule and denied Clayton the residency privilege. But for the district's discriminatory actions, Clayton would have been able to preserve her access to a valuable economic benefit: the ability to send her daughter to a White Hall school. And Clayton's supporters would note that there was ample evidence in her case to prove the district's racially discriminatory motivations, including: the district's prior discriminatory behavior; the timing of the district's decision to return to the old residency rule; and the absence of a reasonable nondiscriminatory justification for the old rule's reinstatement.

Clayton seemed to believe that the merits of her claim were self-evident; however, her confidence was misplaced, as her allegations raise thorny questions about how courts, antidiscrimination scholars, and indeed even laypersons see whites' relationship to minority-targeted discrimination in the workplace. Courts called upon to review these questions, particularly in Title VII cases, spend precious little time exploring how whites perceive minority-targeted discrimination to operate, or the range of ways in which minority-targeted discrimination perpetrated by certain whites can directly harm other whites' interests. A case in point: in Clayton, the court quickly concluded that whites can be injured by minority-targeted discrimination but then tracked Clayton's claim into a little known area of Title VII precedent, referred to here as interracial solidarity doctrine. As Clayton soon discovered, this analytic turn was less of a boon than it initially seemed, as interracial solidarity doctrine exerts an extraordinary regulatory power over white plaintiffs who attempt to use Title VII to challenge minority-targeted discrimination in the workplace. Rather than merely sorting out strong claims from weak ones, the doctrine functions as a kind of normative litmus test used to assess whether the type of harm white plaintiffs allege as a consequence of minority-targeted discrimination counts as compensable injury. As this Article shows, the doctrine plays this powerful gatekeeping function because it is informed by certain historically specific civil rights era propositions about whites and their relationship to race and race discrimination. The Article examines the costs the doctrine's strong normative commitments have imposed on Title VII plaintiffs and asks whether the enforcement of interracial solidarity doctrine has become an end in itself, regardless of whether it actually serves Title VII's larger policy goals.

Specifically, Title VII interracial solidarity doctrine currently only recognizes two kinds of harm whites can suffer from minority-targeted discrimination, and therefore only permits plaintiffs to plead these two kinds of injury. The first injury a plaintiff may claim is the frustration of his associational interests. This injury is based on the civil rights era norm establishing that whites are entitled to the benefits of diversity, that is, the economic, cultural, and educational relationships they can form by associating with minorities. The second injury a plaintiff can raise is the violation of a plaintiff's right to a “colorblind” or nondiscriminatory workplace. This injury is informed by the civil rights era norm that whites have an interest in striving for a colorblind society. The “colorblindness” injury is based on the understanding that racial prejudice is a moral wrong because it compromises the struggle to make the United States a race-blind meritocracy. Scholars will recognize that both the diversity and colorblindness concepts of harm appear in areas of antidiscrimination law other than the interracial solidarity cases; however, these concepts play a special role in Title VII interracial solidarity doctrine, as they are the only bases the doctrine recognizes as a source of harm.

The restrictive nature and regulatory power of interracial solidarity doctrine is clear when one reviews the disposition in the Clayton case, as Clayton's inability to articulate her interests under the existing framework left her without a remedy. The Clayton court began its analysis by noting that Clayton had not alleged the first kind of injury traditionally recognized in the interracial solidarity cases, as she was not suing because of lost associational opportunities. Specifically, she did not allege that the discrimination had prevented her from forming a relationship with her minority coworker. The court next concluded that she had not alleged the alternate harm recognized under the doctrine, as she was not invoking a colorblindness-based injury. She did not allege that she was being psychologically injured by being forced to work in a racist or discriminatory environment. Instead, the court explained, Clayton's claim appeared to be motivated by bare economic self-interest: she merely sought recovery of an employment benefit she lost because of the district's alleged discriminatory conduct. These allegations, the court concluded, required that her interracial solidarity claim be dismissed, as she had failed to articulate any injury cognizable under current doctrine.

For some, the dismissal of Clayton's case serves as a morality tale. Admittedly, she is not the most sympathetic antidiscrimination warrior: the self-sacrificing white person willing to risk his or her own personal standing to protect minorities from unfair treatment. However, from a policy perspective, the demise of Clayton's claim should cause some unease. For Clayton did not lose her Title VII claim because she lacked proof of the district's discriminatory intent or because she failed to show concrete injury. Rather, her claim was dismissed because she failed to pass the normative litmus test at the heart of interracial solidarity doctrine. The doctrine posits that whites may sue over minority-targeted racism only when their primary motive is to advance the social project of racial equality or promote diversity. Yet we must begin to consider what is lost when courts interpreting Title VII limit whites to litigating over such a narrow class of injuries. Certainly, the civil rights era norms reflected in Title VII interracial solidarity doctrine are important; they reflect essential symbolic commitments regarding the moral investment whites ideally should have in ending racial inequality. Yet one can embrace these civil rights era norms without believing that they should play a filtering function in Title VII cases and without believing they should wholly prevent white plaintiffs with alternate motivations for challenging minority-targeted discrimination from bringing Title VII actions. One wonders, why should these civil rights era norms be used to prohibit litigation by alternatively motivated whites when their claims in effect do the same Title VII enforcement work as those brought by whites motivated by civil rights era understandings? What the Clayton case reveals is that courts are interpreting interracial solidarity doctrine in an overly rigid fashion, prioritizing the doctrine's current normative commitments over the enforcement goals of the statute that gave rise to the doctrine's creation.

This Article attempts to shed more light on the Claytons of the world, arguing that there are ways whites are injured by minority-targeted discrimination in the workplace that are not cognizable under current interracial solidarity doctrine. The Article shows that, as long as Title VII interracial solidarity doctrine dominates the interpretation of whites' interests in the workplace, whites whose claims exceed traditional civil rights era understandings of whites' relationship to workplace discrimination will find themselves without a remedy. The Article points out the cost of the current restrictions on interracial solidarity actions, noting that they limit Title VII's enforcement by limiting the class of actionable cases to those where plaintiffs have morally palatable claims. Additionally, the Article posits that the doctrine and its common-sense equivalents stunt our ability to understand the nature of whites' relationship to whiteness, as well as the complex relationship whites have with minority-targeted discrimination.

Scholars who have previously written about interracial solidarity doctrine may view my claims with alarm, as they have raised concerns about empowering an ever-growing class of white plaintiffs to prosecute minority-targeted discrimination when, like Clayton, they appear to be driven by self-interested concerns. Yet the prospect of assisting these self-serving plaintiffs seems far less troubling when one considers that the workplace discrimination these plaintiffs address might otherwise never be litigated, as the directly injured minority plaintiffs in these cases often possess too little information about their unfair treatment to bring a Title VII claim, or they may believe the social costs incumbent to standing up for their interests are simply too high. Indeed, in a historical era in which race discrimination is often carefully hidden from racial outgroup members, reporting by disaffected or low-status racial ingroup members--namely, whites--is destined to play a more important role in ferreting out workplace race discrimination. However, before these low-status whites can play an active role in eliminating workplace racial discrimination against minority targets, courts and scholars must recognize their potential value.

As a separate matter, antidiscrimination scholars' concerns about the motivations of less noble, self-interested white Title VII plaintiffs are evidence of a larger problem this Article intends to overcome. For I believe that the civil rights era norms associated with interracial solidarity doctrine often encourage moral judgment of white plaintiffs rather than a critical assessment of how their claims might teach us something about the operation of race and race discrimination. I argue that “self-interested” complainers like Clayton actually point to important ways in which minority-targeted discrimination by whites exacts concrete social and economic costs from certain white persons. More specifically, the Clayton case shows how high-status whites may attempt to cover their racially discriminatory actions by imposing colorblind rules that also victimize low-status white persons. Cases like Clayton demonstrate how high-status whites are willing to impose economic or dignitary costs on marginal or low-status whites when it is necessary to preserve resources for a group of high-status white persons. Importantly, as long as courts hew to the limited understanding of whites' interests promoted by interracial solidarity doctrine, they miss out on these important connections. As long as scholars, and indeed even laypersons, hew to the same civil rights era understandings that inform the doctrine, they fail to recognize the potential role disaffected or low-status whites can play in helping us uncover and understand the relationship between interracial and intraracial conflicts.

In summary, this Article reviews cases involving Title VII interracial solidarity claims to reveal the hold that civil rights era norms have on legal understandings about whites' relationship to minority-targeted discrimination. My goal is to reveal the burdens these norms impose on low-status or marginal whites as they attempt to plead their Title VII claims. My hope is that the discussion of marginal whites' interests will help reveal their potential as allies in antidiscrimination struggles. However, this potential can only be fully realized if marginal whites' problems and challenges are better reflected in Title VII doctrine and explored in antidiscrimination scholarship. To this end, this Article also shows that the two kinds of injury courts currently recognize under interracial solidarity doctrine--the denial of the enjoyment of a colorblind workplace and the frustration of one's interest in diversity-based associational opportunities--are second-order concerns, and consequently fail to motivate substantial numbers of white persons. Indeed, the doctrine's focus on second-order injuries seems even more puzzling when one considers that it almost entirely overlooks the more highly motivating first-order injuries marginal whites suffer because of minority-targeted discrimination, including basic economic and dignitary harms. A doctrine that attended to these first-order interests would be far more effective in causing whites to initiate interracial solidarity actions. Therefore, the Article uses “failed” Title VII interracial solidarity cases like Clayton to develop a more expansive and nuanced account of how whites are injured by minority-targeted discrimination in the workplace, providing an essential supplement to the existing concepts of harm in Title VII interracial solidarity doctrine.

This Article, however, is more than a descriptive account that catalogues overlooked or undervalued injuries present in interracial solidarity cases. It also uses these injuries to develop a theory of “marginal whiteness,” a framework that allows courts and scholars to consider how white racial identity dynamics can be linked to interracial conflicts in the workplace. The discussion begins by defining the class of “marginal whites”--individuals who, because they possess some nonracial, socially stigmatized identity characteristic, have more limited access to white privilege, and relatedly have a more attenuated relationship to white identity. I argue that this attenuated relationship to whiteness often causes marginal whites to chafe at other whites' requests that they bear burdens to support the maintenance of white privilege. Put differently, marginal whites' ambivalence about whiteness becomes a critical frame that can allow low-status whites to see how higher-status whites' attempts to limit the options of minorities actually materially interfere with marginal whites' immediate economic and dignitary interests. The Article posits that, if Title VII provided these marginal whites with a compelling account of their injuries, they would be more likely to bring Title VII claims. The Article then considers how the marginal whiteness framework can help improve antidiscrimination scholars' analysis of intraracial and interracial conflicts more generally.

Part I of this Article introduces the concept of marginal whiteness, drawing on insights from a variety of sources, but primarily from psychology, sociology, anthropology, and critical theory. Part I.A describes the anxiety marginal whites feel about white identity and their access to white privilege. Part I.B provides courts and scholars with the tools to understand how this anxiety manifests in micro-level intraracial contests between whites in a given workplace. Specifically, this Section shows how minority-targeted discrimination in the workplace can herald and even trigger intraracial conflicts about the scope of whiteness and the proper recipients of white privilege. Part I.C explains why lower-status whites have become more likely to side with minorities in workplace disputes about white privilege when, historically, low-status whites have tolerated economic and dignitary slights caused by higher-status whites' privilege-maintenance strategies. Part I concludes with a brief discussion of the benefits this nuanced understanding of whiteness will bring to legal scholarship, as well as to courts interested in better understanding whites' Title VII claims.

Part II explores how marginal whites have fared in the past when bringing Title VII interracial solidarity actions. Part II.A reviews the origins and early history of the interracial association claim--the heart of interracial solidarity doctrine. Part II.B shows that doctrine has not yet fulfilled its promise to address whites' prejudice-related injuries because judges have forced marginal-white plaintiffs to articulate their injuries using the civil rights era concepts of injury already available under interracial solidarity doctrine. Specifically, this Part shows how the courts' reliance on civil rights era norms to evaluate white plaintiffs' allegations of harm has caused them to miss important Title VII enforcement opportunities. It also discusses cases showing how judicial reliance on the civil rights era norms has compromised the integrity of interracial solidarity doctrine. For example, as shown in Clayton, sometimes whites' claims of injury require a radical rethinking of how some whites' attempts to maintain white privilege adversely affect other whites' interests. However, courts in interracial solidarity cases sometimes avoid these hard conceptual questions by either summarily dismissing cases under existing doctrine or by forcing claims that fail to meet the existing civil-rights-influenced standards into the current doctrinal framework. Part II.C addresses concerns about encouraging courts to elaborate and expand on the grounds for interracial solidarity claims, including concerns about departing from the civil rights era paradigm that informs interracial solidarity doctrine.

Part III shifts from doctrinal concerns to explore marginal whiteness's broader possibilities, particularly the degree to which the framework provides a more motivating vision of antidiscrimination law to whites who have thus far disengaged from antidiscrimination efforts. Specifically, Part III.A reports on recent data from sociological and psychological studies about post-civil rights era whites--whites that entered adulthood roughly two decades after the civil rights movement. This data shows that this cohort of whites has not fully assimilated the civil rights generation's antiracism commitment and, instead, tends to view its antidiscrimination obligations in a more limited, episodic manner. Because of a combination of demographic and social shifts, and related attitudinal changes, post-civil rights era whites have not been strongly motivated by the second-order, moral concepts of injury in interracial solidarity doctrine. This shift, I argue, is one of the reasons we see relatively few interracial solidarity claims from persons in this generation.

Part III.B then explores potential opportunities available for motivating post-civil rights era whites, as studies suggest that these younger whites have a weaker, more ambivalent relationship to white identity than prior generations. Relatedly, these studies suggest that younger whites are increasingly likely to question the importance of or even devalue white privilege. Consequently, many younger whites will find that the marginal whiteness framework's basic principles resonate with them quite strongly. While this cohort of whites is not as willing to challenge racism in pursuit of colorblindness concerns or to gain the benefits of diversity, they are more likely to challenge racism that requires them to assist other whites in maintaining certain advantages. Part III.C revisits this issue, showing how the marginal whiteness framework permits whites to critically evaluate white privilege and allows whites to acknowledge the ways in which efforts to preserve white privilege can work at cross purposes with their individual interests. In short, the marginal whiteness framework is likely to appeal to post-civil rights era whites because it allows whites to raise questions about inequities or different levels of access to racial privilege in white communities. These inquiries might cause them to see their interests as more aligned with subordinated minority workers in disputes over workplace race discrimination.

Part IV anticipates concerns about the social and intellectual transmission of the marginal whiteness framework, addressing questions about its descriptive accuracy, theoretical ambitions, and its potential to disrupt or undermine contemporary antidiscrimination mobilization efforts directed at whites. Part IV explains that, rather than wholly replacing civil-rights-era-influenced normative and descriptive accounts of whites' interests, the concept of marginal whiteness provides an essential supplement to existing accounts of harm. Part IV also more specifically considers the ways in which marginal whiteness can function as a useful analytical tool in understanding contemporary “white racial formation” projects, including the overtures being made to and the identity politics struggles associated with multiracial whites, white Latinos, and Middle Eastern whites. It explores marginal whiteness's potential explanatory power for understanding questions of ethnic and class fractures within the category of whiteness, while acknowledging the need for additional study on these questions. Part IV concludes by highlighting the ways in which the marginal whiteness framework breaks substantially from early Critical White Studies' accounts of white interests, demonstrating its promise as a better analytic tool for analyzing post-civil rights era whites' struggles regarding racial identity than existing models of their interests.

. . .

We know that marginal whites have long existed, as evidenced by scholarship that documents the inclusion and exclusion of certain ethnic groups as they fought to be recognized as white persons. Additionally, the effects of class and gender disadvantage on the experience of persons attempting to claim white privilege are well known. Despite these facts, prior to this analysis legal scholars have not provided a comprehensive account of how the enjoyment of “contingent” or partial white privilege might shape an individual's reaction to race discrimination in a given social context. Additionally, we have failed to chart the ways in which intraracial discrimination against marginal whites often heralds, masks, and is conjoined with acts of minority-targeted bias. Yet, as this Article explains, the need for an analysis of marginal whites' interests is acute, particularly as this group grows in size, awareness, and visibility. Sociologist Jennifer Eichsted has argued in favor of analyses like the one offered here, explaining that “deconstructing whiteness and white privilege would likely facilitate mobilization of whites to antiracism activism.” However, she notes that “such a presentation is not easily developed given the contemporary language available for discussing race and identity.” The theory of marginal whiteness provided in this discussion is offered as a way to facilitate this conversation. By developing the analytic tools and causes of action necessary to address marginal-white interests, we can usher in an era of renewed Title VII antidiscrimination enforcement. However, before marginal whites can truly function as useful allies in antidiscrimination efforts, we will also need to have more challenging social dialogues about whiteness, discussions that attend both to whiteness's obdurate role in social and structural subordination, as well as its contingent context-specific manifestations. This open communication is essential for marginal whites to play their potential role in discrimination disputes. This Article provides a starting point by encouraging marginal whites to recognize the costs whiteness imposes on their daily lives, rather than cling to its inconsistent promise of benefits.

Associate Professor of Law, University of Southern California Gould School of Law.