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Richard Ford argues against law reform proposals that would attempt to apply civil rights protections to "cultural difference." Unlike many criticisms of multiculturalism, which worry about "reverse discrimination" or the erosion of core Western cultural values, the book's argument is primarily focused on the adverse effects of multicultural rhetoric and multicultural rights on their supposed beneficiaries.
In clear and compelling prose, Ford argues that multicultural accounts of cultural difference do not accurately describe the practices of social groups. Instead these accounts are prescriptive: they attempt to canonize a narrow, parochial, and contestable set of ideas about appropriate group culture and to discredit more cosmopolitan lifestyles, commitments, and values.
The book argues that far from remedying discrimination and status hierarchy, "cultural rights" share the ideological presuppositions, and participate in the discursive and institutional practices, of racism, sexism, and homophobia. Ford offers specific examples in support of this thesis, in diverse contexts such as employment discrimination, affirmative action, and transracial adoption.
This is a major contribution to our understanding of today's politics of race, by one of the most distinctive and important young voices in America's legal academy.
"A serious work of legal scholarship about race that's innovative, bracing and funny? Stanford law professor Ford pulls it off in a surprising, rigorous volume that should send academics, legal professionals, civil rights activists and others dedicated to social justice racing for both sides of the barricades. . . . Agree with it or not, this book is an invigorating pleasure for thoughtful readers."—Publishers Weekly
"Ford provides an alternative 'practice-based' definition of culture based on hybrid and emergent cultural traits, and offers ways in which antidiscrimination arguments can avoid the pitfalls of essentialism and ascribed social categories."—Choice
Plaintiff is a black woman who seeks $ 10,000 damages, injunctive, and declaratory relief against enforcement of a grooming policy of the defendant American Airlines that prohibits employees in certain employment categories from wearing an all-braided hairstyle ... She alleges that the policy violates her rights under the Thirteenth Amendment of the United States Constitution, under Title VII of the Civil Rights Act ... in that it discriminates against her as a woman, and more specifically as a black woman ... plaintiff assert[s] that the "corn row" style has a special significance for black women. She contends that it "has been, historically, a fashion and style adopted by Black American women, reflective of cultural, historical essence of the Black women in American society." The style was "popularized" so to speak, within the larger society, when Cicely Tyson adopted the same for an appearance on nationally viewed Academy Awards presentation several years ago ... It was and is analogous to the public statement by the late Malcolm X regarding the Afro hair style ... At the bottom line, the completely braided hairstyle, sometimes referred to as corn rows, has been and continues to be part of the cultural and historical essence of Black American women.
This has long been an easy case for the antiracist left. A large, impersonal, uptight, mainstream, and possibly racist corporation versus a proletarian underdog whose deeply personal mode of self-expression is also the literal embodiment of the soul of a subject people. Milquetoast versus multiculturalism; bureaucracy versus braids: we know what side we're on.
But isn't the argument as the plaintiff Rene Rogers advanced it at least disquieting? Corn rows are "the cultural and historical essence of Black American women"? The theory of racial discrimination and civil rights underlying Rogers's claim raises tough questions for anti-discrimination law. Leaving aside the volumes of critique of racial essentialism as a conceptual matter, I would maintain that the claim of historicism is questionable as a matter of fact: Rogers's own pleadings assert that the style was popularized in the 1970s by Hollywood actress Cicely Tyson. Raising the historical point may seem like nit picking, but it does problematize the link between race and the hairstyle: if the style was popularized by a Hollywood actress, how different is it from the coif Farrah Fawcett made famous at roughly the same time?
Very different if we believe that Tyson's and Rogers's braids, unlike Farrah's feathered tresses, made a political statement of racial pride: Rogers's briefs evoke Malcolm X in support of the political importance of the cornrow hairstyle for blacks. But should anti-discrimination law protect politically controversial, if racially salient, behavior advanced through the vehicle of physical grooming? Suppose some black women employed by American Airlines wished to wear cornrows and advance the political message they ostensibly embody, while others thought cornrows damaged the interests of black women in particular and reflected badly on the race as a whole (given the cultural politics of black America in the mid-to late 1970s, there almost certainly were such black women employed by American Airlines and even more certainly there were such black women among its customers). Suppose further that the management of American Airlines, either formally or informally, sought out and considered the opinions of its employees as well as of its customers and made its grooming policies based at least in part on such information. Now Rogers's claim is no longer plausibly described as a claim on behalf of black women. Instead it is a claim on behalf of some black women over the possible objections of other black women.
Rogers and her supporters might object: "What business is it of other black women whether we wear braids-no one will be forced to wear them." But this individualistic account of the stakes of the case flatly contradicts the proffered rationale for conceiving of the hairstyle as a legal right: cornrows are the "cultural essence," not of one black woman but of black women. If this claim is to be taken seriously then cornrows cannot be the cultural essence of only those black women who choose to wear them-they must be the cultural essence of all black women. And in this case all black women have a stake in the rights claim and the message about them that it will necessarily send-not only those who support the political and cultural statement conveyed by cornrows, but also by those who oppose that statement.
We'd need a fairly detailed account of the cultural and political stakes of cornrows to have a real sense of the political dimensions of this legal conflict. Does the wearing of cornrows track social class (are most cornrow wearers working class "authentics" or bourgeois trendies?) or ideological splits (nationalist v. integtrationist?) within the black community? Do cornrows reflect a sophisticated racial politics in which the essentialist message is subordinate, ambiguous or even ironic or is a crude essentialism a central or indispensable part of the politics of cornrows? Is the symbolism of cornrows widely shared and well understood at least within some subset of American society or is it ambiguous?
It bears noting that we'd also need a definition of "cornrows" or a list of protected hairstyles in order evaluate the implications of Rogers's claim. There are a lot of different all-braided hairstyles: the true "cornrow" style, so named because of the wide parts between each braid, the "style, distinguished only by the presence of tiny braids in lieu of single strands of hair" that law professor Paulette Caldwell defends in her article focusing on the Rogers case, the style in which each braid corkscrews in a difference direction, popularized by rap artists such as Busta Rhymes and the dreadlock style (technically not braided, but I suspect most people would include it in a right-to-cornrows) first associated with Jamaican Rastafarians. One might think some but not all of these styles are appropriate for certain workplaces: the style Caldwell describes for instance, is clearly the most conservative while the dreadlock style (especially if divorced from its religious origins) or the Busta Rhymes style might be more analogous to a punk rocker's Mohawk or "liberty spikes."
What's clear is that the assertion that cornrows are the cultural essence of black women cannot be taken as conclusive evidence that a "right-to-cornrows" is an unadulterated good thing for black women. Even if we take it on faith that cornrows represent black nationalist pride as against the integrationist and assimilationist coiffure of chemically straightened hair, it's clear that a right to cornrows would be an intervention in a long-standing debate among African-Americans about empowerment strategies and norms of identity and identification. More generally, it is by no means clear that an argument that presumes that blacks or black women have a cultural essence as blacks or as black women is a vehicle of racial empowerment. A right to group difference may be experienced as meddlesome at best and oppressive at worst even by some members of the groups that the rights regime ostensibly benefits. For the black woman who dislikes cornrows and wishes that no one-most of all black women-would wear them, the right not only hinders her and deprives her of allies, but it also adds insult to injury by proclaiming that cornrows are her cultural essence as a black woman.
There are also implications for people who aren't members of the "protected" group, but who want access to the cultural styles or artifacts that the rights regime would link to a particular group. In shorthand, the Rogers case implicates that increasingly common fixture of American college campuses and urban centers: the dreadlocked blonde. Most obviously, Rogers's theory of the case implied that a black woman who wished to adopt Cicely Tyson's hairstyle would have a right to do so, while a white woman who wished to emulate Bo Derek's hairstyle (or Cicely Tyson's hairstyle or Bob Marley's hair-style) would not. One might conclude that the Bo Dereks of the world would be no worse off after a Rogers's victory-they would have the same limited opportunity to wear braids as before. But this is not quite so. If an all-braided style is the cultural essence of black women by law, mightn't this imply that Ms. Derek and her emulators are black-coiffed (if not black-faced) minstrels or "white Negro" wanna-bes? It's likely that a right premised on the immutable link between blacks and braids will discourage white and Asian women from wearing braids by sending the message that the hairstyle "belongs" to another social group. Although a right to cornrows might seem only to enhance the freedom of potential cornrow wearers, it is arguably better understood as a policy of segregation through which a set of grooming styles are reserved for a particular group.
We might expand the "dreadlocked blonde" category to include anyone who believes that society is enriched by cultural cross-pollination. Rogers's favored rights outcome would have two likely consequences. It would almost certainly increase the number of black women wearing cornrows, both because employers would no longer be able to forbid them for black women and because the judicial embrace of Rogers's theory of the case would encourage black women to identify cornrows as their cultural essence and thereby popularize the style. It would also likely reduce the number of non-black women wearing the style as those women would also internalize the legally disseminated message that the hairstyle was the cultural property of black women and conclude that their adoption of the style would be inauthentic or even a type of cultural trespass. The result would be an increased racial divergence in women's grooming. The stereotypical assimilationist would of course find this result distressing, but so should the type of multiculturalist who believes that groups of differing racial, social and cultural backgrounds should freely mix and freely exchange ideas and aesthetic conventions.
Even for the black women who affiliate with the cornrow hairstyle, legal enforcement comes with hidden costs. The legal discourse underlying such a right-to-difference can easily take on a life of its own and have unintended side effects. In large part this is because the claim that braids are uniquely important to black women conceals a host of distinct and often contradictory descriptive claims and normative rationales. Even in the years that I have spent developing this critique, I have heard a number of distinct arguments for why Rene Rogers should have prevailed. Some people have insisted that cornrows are of particular importance to black women because they are a part of African heritage dating back long before the European encounter. But are we then to limit this right to those who can trace their ancestry to the regions of the continent where braids were worn and limit the protected styles to those worn by the defendants' ancestors (if this seems a fanciful suggestion, notice that courts employ precisely this type of analysis in cases dealing with Native-American cultural claims)? Others have argued that braids are one of a few hairstyles that allow many black women to obtain the long, flowing hairstyles favored for women in contemporary society without chemical straightening. On this rationale, should the right to braids be limited to those black women for whom this is true? (Black women with fine-textured hair who wish to wear braids in order to signal racial affiliation would lack standing under this interpretation of the claim?) Doesn't this rationale raise the disquieting implication that black women should be free of ostensibly Eurocentric grooming norms only to conform better to patriarchal ones? In fact, isn't the desire for long, flowing hairstyles actually a symptom of the Eurocentric grooming norms that right is supposed to resist? And doesn't this rationale undercut the "heritage" rationale by locating the impetus for braids in the aesthetic sensibilities of contemporary Western culture rather than in ancient African tradition?
Most disquieting is the possibility that the cultural rationale could set precedent that might apply in other cases. If braids are the immutable cultural essence of black women, what else is? There are a great many possible answers to this question-some disturbing-that many people will find as intuitively plausible Rogers's assertion regarding braids. Consider another case in which an employer's policy implicates a theory of racial difference:
TPG [The Parker Group] is a telephone marketing corporation, often hired to perform work for political candidates. The conduct at issue in this case involves TPG's work making "get-out-the-vote" calls for various political candidates ... Approximately 10% of such calling is race-matched, such that black voters are called by black TPG employees who use the "black" script, while white voters are called by white TPG employees who use a different "white" script ... TPG employees doing the race matched calling in 1994 were assigned separate calling areas and separate scripts according to race ... TPG also physically segregated employees who worked at race matched calling. Black callers were segregated into one room and white callers segregated into another.
Is TPG's policy, as the court held, racially discriminatory because it is "based on a racial stereotype that blacks would respond to blacks and that ... race was directly related to ... ability to do the job"? Or is the policy the natural outgrowth of the recognition of cultural differences between the races and therefore justifiable, perhaps even laudable? If Rogers's cultural essence as a black woman gives her an intrinsic relationship to a hairstyle, mightn't even a good faith employer conclude that her cultural essence would also enable her to better persuade other blacks and disable her from connecting with whites?
I hope it's clear up front is that these objections do not necessarily go to the substantive outcome of the dispute, but instead pertain to the rationale employed in an effort to reach a given outcome. My sympathies lie with Rene Rogers; I think she should have been allowed to wear her braids. If I were in charge of the grooming policy I would have rewritten it to exclude the prohibition against braids. If I were a member of Congress I would consider legislation to prohibit employers from adopting rigid grooming policies generally as a matter of federal labor law (although such a legal rule presents a complicated case, as I will argue below.) It is also possible that the regulation as applied to Rogers was a part of a pattern of harassment and should have been construed as actionable racial harassment or as constructive termination. But I think that the argument that Rogers and her attorneys actually made was a bad one and that the court was right to reject it. Similarly, there are countless arguments made with good motivations toward ends I generally support that I will critique in this book.
* * *
The logic and assumptions underlying both Rogers's claim and TPG's policy are strikingly similar: both assume that an ascriptive social identity-in these cases race-corresponds to a vague but intrinsic characteristic: culture. Both insist that this correspondence should have consequences for the organization of the workplace. Both Rogers's rights claim and TPG's policy are determined by a thick account of the sociocultural entailments of group identity, an account that is central to what I have called "difference discourse."
Below I'll sketch a portrait of what I will call "difference discourse." I'll use some fairly broad strokes to begin this portrait, filling in the details later in the book.
One broad stroke is the idea of a discourse. My ambition is to describe a set of beliefs, conversations and practices that the reader will recognize as interconnected, mutually reinforcing and socially pervasive. Difference discourse describes social identities such as race as a manifestation of underlying differences-a racial culture-while at the same time generating those very differences: for instance, Rogers's claim describes cornrows as the essence of black womanhood and in so doing encourages black women to wear cornrows while making them off-limits or at least peculiar for non-blacks.
Excerpted from Racial Culture by Richard T. Ford Copyright © 2006 by Princeton University Press. Excerpted by permission.
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Difference Discourse 4
Political Philosophy 5
Legal Scholarship 11
Overview of the Book 20
CHAPTER 1. DIFFERENCE DISCOURSE 23
A (Abridged) History of Difference 29
The Production of Group Difference as Common Knowledge 36
The "Repressive Hypothesis" 36
"Diversity": Difference Discourse as Corrupt Détente 42
Alan Bakke: Multiculturalist? 44
CHAPTER 2. IDENTITIES AS COLLECTIVE ACTION 59
Identity as Social Performance 61
Free Time 64
Recognition of Difference as Protective Custody 67
Rights as Public Policy 68
Rights-to-Difference Require an Official Account of Group Difference 70
Difference Discourse as Social Discipline: Delegitimation and Stereotyping 74
Cultural Reservations 78
Copyrights-to-Difference: Culture as Property 88
Identity Consciousness: Less Is More 90
Group Consciousness without Cultural Romanticism 91
Culture Distinguished from Status 93
Against "Racial Characteristics" 97
Status and Immutability 100
Intimacy and Identity 116
CHAPTER 3. "CULTURAL DISCRIMINATION" 125
Why "Cultural Bias" Is Like Death and Taxes 127
Background Rules as Cultural Discrimination 127
The Inevitability of Discriminatory Laws 130
Everyone Can Make a Difference: Difference Discourse as Cultural Zeitgeist 132
Difference as an Expensive Taste 139
Institutional Cultures 142
Institutions, Culture and Intergroup Conflict 148
Cosmopolitan Difference 156
The Cosmopolitan and the Province: An Ideological Reorientation 162
CHAPTER 4. THE ENDS OF ANTI-DISCRIMINATION LAW 169
Civil Rights as a Limited Mechanism of Social Justice 170
Anti-discrimination Law and Joint Costs 172
Doctrinal Reform 179
Disparate Treatment 181
Disparate Impact 183
Rogers Redux: Toward a Pragmatic Approach to Difference 195
Alternative Approaches to Group Conflict and Social Injustice 203
POSTSCRIPT: BEYOND DIFFERENCE 211