Excerpted From: Katharine T. Bartlett, Affirmative Action and Social Discord: Why Is Race More Controversial than Sex? , 52 U.C. Davis Law Review 2305 (191 June, 2019) (Footnotes) (Full Document)
A major concern courts have raised about race-conscious affirmative action is its potential to evoke resentment, racial tension, and social discord. This concern has led to narrow limits on race-conscious affirmative action and, with respect to college and university affirmative action programs, the avoidance of a racial justice rationale in favor of a justification based on the benefits of diversity to the institution. This concern, and these responses, have not arisen--at least not to the same extent--with respect to affirmative action for women. This Article tries to explain why. It focuses on psychological and cognitive factors, including self-interest, system-justifying beliefs, and stereotyping, that make race a more threatening category than gender and may help to explain a significant gap in popular support between race-conscious and sex-conscious affirmative action. The Article also advances the hypothesis that, despite important differences in the way people perceive race and sex, the factors that reduce opposition to affirmative action in each case are the same ones that reinforce the conditions for inequality that give rise to the need for such programs in the first place. Treating the diversity of educational institutions as the most compelling interest for minority admissions policies may reduce antagonism to affirmative action, but only by leaving in place the settled expectations of the racially dominant that their interests come first. Paternalistic stereotypes may soften resistance to affirmative action, but only by building on views of women that keep them at a disadvantage. In short, one of the difficulties of affirmative action is the opposition to it; yet the factors that appear to reduce that opposition may also serve to worsen the larger problem of discrimination that affirmative action is intended to address.
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This Article summarizes some plausible explanations for how self-interest, system-justifying beliefs, and stereotyping lead to greater opposition to race-conscious affirmative action than to affirmative action for women. In each of these areas, the greater salience and negativity associated with race make race-conscious measures more threatening, and thus less acceptable, than sex-conscious measures. Insofar as affirmative action law has developed in part in response to a concern about social discord and balkanization, these differences between race and sex could help to explain the law's current path of limiting-- perhaps soon even eliminating--race-conscious affirmative action, even as affirmative action for women continues without significant challenge.
Along with describing the differences in responses to race-conscious and sex-conscious affirmative action programs, this Article has also identified one dynamic in common. With respect to both race- and sex-conscious programs, the same factors that reduce opposition to affirmative action may also help to sustain the conditions for inequality that give rise to the need for such programs in the first place. To the extent this is the case, the goal of reducing opposition to affirmative action, however appealing it might be as a short-term public policy objective, should be understood in the long-term to be, at best, a double-edged sword.
This does not mean that the resentments affirmative action can stir should be ignored for all purposes. For example, it seems clear that workplace strategies that build accountability within positive and affirming norms of inclusion work better in building a commitment to nondiscrimination than those based on accusation, threat and shame. But how affirmative action is implemented is a different matter from whether affirmative action should exist, and why. Even if concerns about resentment and discord are appropriate in deciding how to make affirmative action work, it is a concern for justice and equality that should ordinarily determine when it is allowed, and how it is justified.
Katharine T. Bartlett. A. Kenneth Pye Professor of Law, Duke University School of Law.