{"id":3485,"date":"2011-09-28T10:41:01","date_gmt":"2011-09-28T14:41:01","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3485"},"modified":"2016-11-16T20:37:10","modified_gmt":"2016-11-17T01:37:10","slug":"not-so-sweet-sweets-for-sale","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/not-so-sweet-sweets-for-sale\/","title":{"rendered":"Bitter Sweets for Sale"},"content":{"rendered":"

In opposition to a bill<\/a> 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<\/a> yesterday. \u00a0Charging sweet-toothed patrons different prices based on their race and gender \u2013 whites paying the most, with \u201cdiscounts\u201d for other races and an additional \u201cdiscount\u201d for women \u2013 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.<\/p>\n

Wow.\u00a0 This post isn\u2019t going to address arguments for or against affirmative action programs.\u00a0 Readers can find that elsewhere<\/a>.\u00a0 Instead this post will focus on the underlying assumption driving the students\u2019 bake sale \u2013 that people in this country no longer face barriers to entry for higher education, jobs, etc., based on their race or gender.\u00a0 First, this assumption is wrong.\u00a0 After facing litigation for sex discrimination, even Wal-Mart seems to admit<\/a> that women don\u2019t have equal opportunities in business simply because they are women.\u00a0 There’s also been much debate over the neutrality of standardized college admissions tests, like the SAT<\/a>.\u00a0 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.<\/p>\n

The most recent example comes just this year, in Wal-mart v. Dukes<\/em><\/a>.\u00a0 Writing for the majority, Justice Scalia addressed plaintiffs\u2019 claims that local managers’ discretion had led to sex discrimination in promotion decisions by asserting that \u201cleft to their own devices most managers in any corporation \u2013 and surely most managers in a corporation that forbids sex discrimination \u2013 would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.\u201d\u00a0 It\u2019s definitely true that not all managers discriminate in promotion decisions.\u00a0 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.\u00a0 The plaintiffs in the case presented several pieces of evidence showing regional and national disparities between women and men in company promotions.\u00a0 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.\u00a0 But, bias and stereotypes unconsciously affect many of the judgments people make about members of other races and genders.\u00a0 (CR-CL published a great article<\/a> on unconscious bias in 2005.)\u00a0 Just because discrimination is no longer always explicit, doesn’t mean systemic discrimination has been eradicated.<\/p>\n

So why do judges and others in the United States cling so tightly to the idea that discrimination is no longer mainstream?\u00a0 With this country\u2019s history of \u2013 and contemporary \u2013 problems of discrimination and subordination, how can one truly believe we have achieved real equality?\u00a0 Perhaps no one does believe it.\u00a0 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 \u201cpull themselves up by their own bootstraps.\u201d<\/a>\u00a0 How disruptive it would be to the entire notion of the US as the\u00a0 \u201cland of opportunity\u201d<\/a> to admit that there is systemic discrimination preventing advancement.\u00a0 But it needs to happen.\u00a0 If we\u2019re ever going to adopt an approach to equality law that truly promotes equality, our jurisprudence must recognize the systemic discrimination that still exists.\u00a0 It\u2019s like addiction \u2013 the first step to recovery<\/a> is admitting you have a problem.<\/p>\n","protected":false},"excerpt":{"rendered":"

In opposition to a bill in the California State Senate allowing public universities and colleges to consider race, gender, ethnicity 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