PART ONE—
UNDERSTANDING THE AMERICAN RACE PROBLEM

Chapter One—
Formal Equal Opportunity

Formal equal opportunity is the nation's fundamental public policy on civil rights. Like its predecessor, the separate-but-equal policy under Jim Crow,^[1] formal equal opportunity seeks to regulate in rather broad terms the treatment that government and, to a lesser extent, private individuals accord to society's racial groups in relation to one another. Formal equal opportunity, in other words, determines the direction and tone of interracial relations in our society today.

Clearly, the past holds the key to understanding formal equal opportunity. The meaning and significance of this civil rights policy are rooted in the community attitudes and beliefs that fueled Jim Crow's separate-but-equal policy, for formal equal opportunity is intended to run counter to Jim Crow and all that it represents.^[2]

Those historical attitudes and beliefs, which helped to shape the development of formal equal opportunity later on, are unmistakable. African Americans were regarded as an alien breed, lower than the entire community of whites. They were stereotyped as bestial, unteachable, uncouth, odious, and inferior to whites in every essential respect. In 1896 the Supreme Court in Plessy v. Ferguson determined that these community attitudes and beliefs had gelled into a strong community expectation concerning interracial relations: that the races were to be held separate but equal—meaning, of course, unequal.^[3] The separatebut-equal policy, in which at least one prominent African American, Booker T. Washington, acquiesced, was thereby born; and a

parade of laws designed to enforce it soon followed.^[4] These laws, which condoned ubiquitous discrimination against African Americans and mandated "colored" and white public accommodations, schools, libraries, restrooms, drinking fountains, and so forth endured until formal equal opportunity became public policy in the 1950s and 1960s.^[5]

Formal equal opportunity is a first-time blend of African American and white community expectations regarding interracial relations having the force of law. At its most basic level, formal equal opportunity can be defined as a civil rights policy in which African Americans and whites are held to be of equal legal status. The races are deemed to differ in no legally material way and are therefore entitled to equal legal treatment. Racism and its humiliating effects—segregation and discrimination—are no longer the official policies of or condoned by the government.^[6]

Formal equal opportunity has certainly not reversed all the negative attitudes that whites held toward African Americans during the Jim Crow era. Racism and stereotyping continue to thrive in our society. The survival of these racial attitudes does not, however, call into question the legitimacy of formal equal opportunity as our current public policy. So many social institutions and conventions have been built around formal equal opportunity that community expectations favoring this policy are clearly stronger and more consistent with our liberal democratic society than those favoring separate-but-equal treatment.

In The Structure of Scientific Revolutions, Thomas Kuhn demonstrates that new paradigms often have a long and uncertain gestation period.^[7] In the case of formal equal opportunity, the first serious indication that it might replace separate-but-equal as the nation's civil rights policy came during World War II. President Franklin D. Roosevelt issued Executive Order 8802 on June 25, 1941, which (in what has become standard legal jargon for creating formal equal opportunity rules of law) "prohibited discrimination on the basis of race, creed, [or] color" in certain areas of federal employment, vocational training programs administered by federal agencies, and the national defense industry. Executive Order 8802 also created a federal agency, called the Fair Employment Practices Committee, that was authorized to receive and investigate charges of employment discrimination,

redress proven grievances, and make recommendations to carry out the purposes of the executive order.^[8]

Further indications of the advent of formal equal opportunity appeared in the military itself during the Second World War. Before the war, African Americans in the armed services had been confined to segregated units and assigned to noncombat, low-status jobs, usually in labor details. African American soldiers during World War I, for example, were often trained in the United States using broomsticks as weapons; they fought gallantly in Europe, but as part of the French, not the American, armed forces. The experiences of these soldiers, in other words, reflected the overall experience of African Americans under Jim Crow. By the end of World War II, however, the army had desegregated most of its officer candidate schools, although Army Air Corps training was still segregated; the navy had its first African American commissioned officer, although African American sailors generally were permitted to serve on ships only as mess stewards; and the Marine Corps, which had been exclusively white since the late eighteenth century, enlisted African Americans but assigned them to segregated units.^[9]

Although racial progress in the military during World War II was minor, matters were greatly improved by the time of the Korean War, when African Americans fought in desegregated units in all branches of the service. This turn of events was the direct result of Executive Order 9981, signed by President Harry Truman on July 26, 1948, which required "equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin." A companion order, Executive Order 9980, signed on the same day, brought formal equal opportunity to most areas within the federal government's civilian departments.^[10]

In bringing about these early promulgations of formal equal opportunity, however, the confluence of several domestic and international conditions was more important than the altruism of lawmakers. Demographic changes in the industrialized North were crucial. Between 1940 and 1944, 470,000 African Americans moved from the rural regions of the South to the urban areas of the North looking for better jobs and better racial relations. For the first time, most African Americans lived in cities rather than

in the rural South. This massive migration placed desegregative pressures on employment markets in the cities and, most important, provided a welcome supply of labor for hungry civilian industries supporting the war effort.^[11]

The war itself was an important motivation for the executive orders issued by Roosevelt and Truman. Fighting for democracy abroad made it increasingly difficult to defend racial oppression at home. African Americans, who felt the contradiction intensely, applied increasing pressure on government officials through demonstrations, marches, and other forms of protests. Union leader A. Philip Randolph's threatened march on Washington in 1940, which helped to persuade Roosevelt to issue Executive Order 8802, is an example of the new activism that took hold of African Americans. The success of this activism also served to convince the followers of Booker T. Washington, who died in 1915, that it was time to jettison their support for separate-but-equal and to embrace the more assertive civil rights policy, formal equal opportunity, advocated by such leaders as W. E. B. DuBois and Randolph.^[12]

Finally, the rise of Keynesian economics and the decline of laissez-faire economics in the United States during the 1930S made government intervention schemes, such as formal equal opportunity, seem proper. Indeed, the failure of laissez-faire government to prevent or to extricate the nation from severe economic depression made government regulation of institutional behavior seem not only legitimate but also necessary.^[13]

Formal equal opportunity during the war years was but a community impulse struggling to become a public policy, however. Separate-but-equal was still the dominant community value—it was still "law"—although it had been significantly vitiated.

One May 17, 1954, formal equal opportunity came of age when the Supreme Court handed down its momentous decision in the cases consolidated under Brown v. Board of Education.^[14] Against the backdrop of all the pressures that had caused Roosevelt and Truman to establish pockets of formal equal opportunity in selected areas of American life, and with the momentum of a line of its own cases chipping away at separate-but-equal,^[15] the Supreme Court inBrown I took a decisive turn for the better in the government's approach to race relations. Brown I was the first act of government to make the ideal of racial equality—the push for

racial inclusiveness—a constitutional imperative and, hence, unequivocally the official civil rights policy of the United States. In Brown I, a unanimous Supreme Court promulgated, as the Court itself would later say, "the fundamental [policy] that racial discrimination in public education is unconstitutional" and declared that "[a]ll provisions of federal, state, or local law requiring or permitting such discrimination must yield to this [policy]."^[16]

Although Brown I dealt solely with the issue of public education, the fact that for the first time the Supreme Court had construed the Constitution, the nation's legal infrastructure, to require nonracial access to such an essential societal resource would inevitably project a towering shadow over virtually every aspect of interracial relations in this country. Indeed, Brown I has been credited with engendering "a social upheaval the extent and consequences of which cannot even now be measured with certainty" and with changing the legal status of African Americans from mere supplicants "seeking, pleading, begging to be treated as full-fledged members of the human race" to persons entitled to equal treatment under the law.^[17]

In the years following Brown I, courts and legislatures identified and accentuated two major operational tenets derived from formal equal opportunity. These tenets have guided the way legal institutions and the community at large have applied this policy since Brown I . Today, formal equal opportunity is often defined in terms of these operational tenets.

The first is racial omission, what some might call color blindness or a race-neutral approach. Racial omission may be seen, in some respects, as a restatement of the fundamental meaning of formal equal opportunity, discussed earlier in this chapter—equal legal status and treatment. Racial omission is the belief that racial differences should be ignored and omitted from legal consideration. Rules of law and practices regulating access to education, employment, housing, and other social resources must be formulated without regard to race or racial dynamics. Members of all racial groups are entitled to be treated the same in all essential respects by the government. Accordingly, white Americans may not receive any opportunities not also available to racial minorities, and vice versa.

Racial integration is the sibling tenet of racial omission. Racial integration is racial mixing. It is simply any governmental policy that mandates or encourages a physical merger or juxtaposition of various racial groups. If the government favors racial integration, it necessarily must disfavor racial separation. Both policies cannot be promoted simultaneously.

Racial integration should be contrasted with desegregation. Desegregation is the removal of legal restraints on one's actions or designations placed on one's status that were intended to stigmatize. The removal of these government-imposed conditions permits a group or its members to choose to go their separate or integrated ways. In this sense, it can be said that racial integration presupposes desegregation.

There is also a sense in which racial omission presupposes desegregation. No government could logically or successfully operate a public policy that mandates the omission of race from legal considerations without first (or at least simultaneously) removing legal designations designed to exclude and stigmatize. The failure to do so would at worst create governmental dysfunction and at best engender cognitive dissonance among the public.

The ultimate purpose of formal equal opportunity is to change our society from one marked by racial exclusivity to one characterized by racial inclusion. This fundamental civil rights policy seeks to bring African Americans into the mainstream of American society, to make them first-class citizens. Racial omission and racial integration are simply specific strategies or vehicles for engendering real opportunities for racial inclusion.^[18]

The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 are the most significant federal rules of law implementing these two strategies.^[19] More sweeping than any other piece of civil rights legislation in American history, the 1964 Civil Rights Act has eleven titles, each of which prohibits discrimination "on the basis of race or color" in a major sector of American life: voting (Title I), public accommodations (Title II), public education (Title IV), and employment (Title VII), among others. The 1965 Voting Rights Act vastly improves the voting protections offered by Title I of the 1964 Civil Rights Act (which mainly establishes standards applicable to voter registration) by banning all forms of racial discrimination in voting, from

literacy tests to complex schemes of vote dilution, and by enforcing these rights with powerful remedies. Finally, the 1968 Fair Housing Act makes it illegal for certain property owners, real estate agencies, and lenders to discriminate "on the basis of race or color" in the sale or rental of housing.

But after all the civil rights laws and passions promoting formal equal opportunity since Brown I, it is nevertheless true that millions of African Americans are still living a life that in many ways reflects second-class citizenship, a life that in many respects is Jim Crow in all but name. Class by class, African Americans continue to shoulder more than their fair share of societal hardships such as racial discrimination, poor public schooling, and poverty. Why?

My answer to that question targets formal equal opportunity itself. I argue that there is a relationship between formal equal opportunity and intra-class racial disparity, the American race problem. Specifically, I argue that there is something dreadfully wrong about the way our fundamental civil rights policy has been applied since Brown I .

Some legal instrumentalists, particularly legal realists, would argue that formalism is what is wrong with formal equal opportunity, that this policy has not been grounded in the social reality it seeks to regulate. For example, the late Judge Skelly Wright, one of the most influential modern legal realists, faulted those who would apply our civil rights law and policy in a way that is too concerned with abstractionism, deductive logic, and internal consistency.^[20] Wright would advise judicial decision makers implementing formal equal opportunity to proceed from the Holmesian maxim concerning the content and growth of law—"The life of the law has not been logic; it has been experience"—rather than from the Langdellian syllogism:

All P are M [principle of law from formal equal opportunity]

No S are M [crucial facts of problem]

Ergo, No S are P [authoritative decision]^[21]

Although decision makers, both judicial and nonjudicial, have not always been attentive to socioeconomic reality when implementing formal equal opportunity, many of these decision makers, especially judges, do attempt to ground their decisions in

that reality. And many of these individuals are generally supportive of civil rights. For example, the Supreme Court in Bakke sincerely tried to devise a remedy that could deal with the real-life obstacles that African American students continued to face in college admissions.^[22]

The real problem with the application of formal equal opportunity has less to do with formalism than with the degree of deference given to African Americans' view of reality. It is the lack of priority given to African American civil rights interests in the implementation of formal equal opportunity that is most at fault. Formal equal opportunity (through its operational tenets of racial omission and racial integration) gives low priority, little weight to African American rights interests at critical times, despite the fact that civil rights would seem to be the one arena in American society in which these interests, damaged for so long by earlier policies, should receive top priority.

With the increased class stratification in African American society since the 1960s, various African American civil rights interests occasionally conflict. This, of course, can make it more difficult to emphasize or promote a particular interest. Yet in most instances, these civil rights interests are not contraposed, and the conundrum of which interest to promote does not usually present itself.

At this point, some may argue that formal equal opportunity never sought to ensure equality of results, only equality of treatment by government.^[23] My initial response to this argument is to recognize that formal equal opportunity has had a greater impact on African Americans at the normative level than at the ground level. In many respects, African Americans and whites are accorded equal treatment by government more in theory than in the reality of daily life. African Americans have certainly received a legalistic, formalistic type of equality. But that is a poor proxy for the real thing—an equal chance to improve or protect one's chances for worldly success and personal happiness.

This leads to a more substantial response to the argument. I fault formal equal opportunity (or, more precisely, its implementation through racial omission and racial integration) for its inability to deliver equal opportunity for the races, not equal results. Coming out of the Jim Crow era, the government essentially had

two choices concerning how to redress the racial disparity set in motion by centuries of unequal status and treatment. The first and more direct was simply to upgrade the living conditions of African Americans by, for example, providing housing or jobs in proportion to the racial group's percentage of the population. Although some deemed this tactic, equality of results, immoral because it undermined the principle of desert (for instance, qualified workers could be denied jobs because their employment would upset an employer's racially balanced work force), recent scholarship has demonstrated how some forms of equality of results might be morally defensible.^[24]

Formal equal opportunity did not, in any event, represent this approach to the problem. Rather, it meant choosing a second, indirect strategy that focused on racial starting positions, attempting to provide African Americans with the opportunities necessary to gain parity with whites by such actions as proscribing employment discrimination and making available the means to enforce that prohibition—not a bad plan if properly implemented.

I contend, however, that formal equal opportunity is operationally flawed, even though it is conceptually sound; that although it was designed to level the playing field for African Americans and whites, too often it has done this only within the rarefied pages of the law books, not within the mundane living conditions of American society. To claim that the playing field should be level—that African Americans should have roughly the same opportunities as whites, in reality, to augment or preserve their socioeconomic position in society—is quite different from claiming that the results or the achievements of the competition should be equal. I make the former, not the latter, claim.

Chapter Two—
The African American Middle Class

Defining Characteristics

Although it is rarely defined, the term middle class is widely used in American society. It is a term that purports to measure worldly success. Because Americans like to view themselves as successful people, there is little wonder, then, that most consider themselves members of the middle class. Yet, as one commentator indicates, this "all-inclusive category . . . [is] so broad that it not only blurs real distinctions in income, lifestyle, and well-being but often clouds public discussion as well."^[1] Quite simply, the term middle class needs to be carefully (and perhaps narrowly) defined before it can be gainfully employed in public discourse.

It may be impossible, however, to arrive at a definition acceptable to everyone, as illustrated by the work of a few prominent scholars. Sociologist Bart Landry, for example, defines middleclass status in terms of occupation. In his book The New BlackMiddle Class, he equates middle-class status with white-collar occupations, by which he means sales and clerical workers as well as professionals and business managers.^[2]

Some of the specific occupations Landry classifies as middleclass may be debatable—in particular, I would categorize sales and clerical positions as working-class occupations. Nevertheless, Landry's occupational approach is useful, because an individual's occupation clearly conveys certain information about his or her socioeconomic status. Primarily, it indicates the stability of one's stream of income. For example, an autoworker, who endures periodic layoffs and the threat of strikes or cutbacks during contract

negotiations, has a less stable earnings stream than does a computer analyst, who enjoys a high degree of job security and mobility, even though both workers might earn about the same amount. Occupation also tells us something about educational background: a doctor's level of education is vastly different from that of a professional wrestler, even though both may earn $200,000 annually.

But an occupational approach has its limitations. Occupational status can be a misleading indicator of income level. A Legal Aid attorney might earn only $18,000 a year, a salary ordinarily inadequate to allow one to "buy into" the middle-class dream: comfort and security, a nice home, a late-model car, household appliances such as a microwave oven or VCR, an annual vacation, savings and investments—in general, a stable, even thriving existence.^[3] Yet a plumber earning $60,000 a year could easily afford such a lifestyle.

Because income level dictates the type of lifestyle one can afford, many scholars argue that individual or family income is the most important determinant of socioeconomic status and the primary measure of class standing. Sociologist Robert Hill and economists Andrew Brimmer and Andrew Hacker are among leading scholars who use income levels to define the African American middle class. For both Hill and Hacker, this class, like the white middle class, consists of families or individuals with annual incomes between $20,000 and $50,000. Brimmer defines the middle-class income range as $25,000 to $50,000.^[4]

There are problems in using an income approach. All income categories and percentages based on census data that predate the March 1989 population survey (including the categories and percentages employed by Hill, Brimmer, and Hacker) have limited current value. This limitation has less to do with the passage of time—which involves only two or three years at most—than with new methods of analysis used by the Bureau of the Census. Since 1988, the target year for the March 1989 population survey, the government has used expanded income categories and a different technique for processing the raw data. For example, instead of a $10,000–$20,000 income category, the government now uses $10,000–$15,000 and $15,000–$20,000 categories. In addition, "$100,000 and over" has replaced "$50,000 and over" as the top income category.^[5]

A more fundamental problem with an income approach is that it provides little information about occupational status, earnings stability and potential, or educational background. A young business lawyer who earns $40,000 a year, a janitor who moonlights as a taxicab driver and has a combined annual income of $40,000, a high school teacher who earns $40,000 after twenty years on the job, and a family in which the husband works in a factory and the wife cleans offices to earn a combined annual income of $40,000 all have the same "middle-class" income—but their occupations, their degree of job security and mobility, their future earnings potential, and their educational backgrounds are vastly different.

Nevertheless, each of these individuals and families has the ability to live a relatively stable, comfortable lifestyle. Income is the essential determinant, though it may be based on widely varying occupations and education. This book, then, takes an income approach in defining the general socioeconomic classes in African American society—the upper class, the middle class, the working class, and the poverty class. But I am less concerned with the numbers themselves than with what the numbers mean or suggest. When I use a term such as African American middle class, I refer in the main to an identifiable set of socioeconomic characteristics that certain households (individuals or families) normally hold in common.

Using annual household income as the chief defining characteristic of socioeconomic strata, I categorize households with incomes ranging from $75,000 to $100,000 or more as upper-class, those within the $25,000-$75,000 income range as middle-class those within the $10,000-$25,000 range as working-class, and those with incomes of $10,000 or less as among the poverty class . Because there are so few African Americans in the upper class (fewer than 3 percent), I combine upper- and middle-class households for purposes of analysis, using the term middle class to generally include both groups.

Based on these considerations, 33.8 percent of African Americans belong to the middle class, compared to 56.7 percent of white Americans. The African American middle class is thus a sizable segment of African American society, but much smaller than the white middle class, which is the largest segment of white society. (See the accompanying table detailing the various

income groups and the chart indicating relative sizes of these socioeconomic strata.)

African American households within the middle-class income range have certain socioeconomic characteristics:

• Forty-three percent of the households consist of families headed by both parents. Among this group, the men are employed in three categories in approximately equal percentages: semi-skilled or unskilled blue-collar or service workers (for example, assembly-line workers, laborers, food handlers), professionals (doctors, lawyers, teachers), and business persons (managers, company sales representatives, small-business owners). The women in this group also fall into three occupational categories in roughly equal percentages: retail sales or clerical

Socioeconomic classes
SOURCE: Based on statistics from U.S. Bureau of the Census,  Current Population
Reports: Money Income and Poverty Status  in the United States: 1988, Series P-60,
no. 166, advance data from the March 1989 Current Population Survey (Washington,
D.C.: U.S. Government Printing Office, 1989), pp. 23–24, table 2.

workers (postal workers, officer workers, telephone operators), professionals, and homemakers (married women who are not in the paid labor force).

• Fourteen percent of the households are female-headed. About 20 percent of these women are professionals, another 20 percent are retail sales or clerical workers, and an additional 20 percent are retired. The remaining 40 percent are employed as semi-skilled or unskilled blue-collar or service workers.

• The remaining households consist of single women, single men, and male-headed families, in which the breadwinners are typically business managers or professionals.^[6]

Although members of the African American middle class enjoy a comfortable and stable lifestyle relative to other African Americans, color remains a significant barrier to attaining sustained happiness and worldly success. Nowhere is this assessment more evident than in the employment arena. Here, middle-class African Americans face a combination of problems that jeopardize their level of income and status and that threaten to push them into the working class, or worse. And it is also here that middle-

class African Americans face racial subordination through the judicial application of formal equal opportunity.

The Subordination Question

The subordination question analyzes the role of formal equal opportunity in engendering racial subordination and also examines how such subordination has contributed to the problem of intraclass racial disparity. It may be best to begin by discussing the nature of this intra-class disparity—that is, by describing the American race problem as it is experienced by middle-class African Americans.

Intra-Class Racial Disparity

Middle-class African Americans shoulder disproportionately more societal burdens than do middle-class whites in at least three vital areas: employment, housing, and education. Although they are not the focus of this chapter, the obstacles faced in housing and education cannot be taken lightly. Members of the African American elite encounter as much housing segregation as poor African Americans do, though the two groups remain geographically separated from each other.^[7] And even though middle-class African American high school students, because of their parents' education and occupational status, are more likely to aspire to highly selective colleges and graduate schools than are working-class or poverty-stricken students, all African American high school students face a common problem—namely, low enrollment in higher education, caused in part by the use of standardized admission tests. On average, African American students whose fathers are college-educated score lower on standardized entrance exams (such as the SAT for college admission and the LSAT for law school admission) than white students whose fathers had only an elementary school education.^[8]

Nevertheless, employment hardships probably present the most serious threat to the African American middle class overall, for they seem to affect virtually all members of this class in one way or another, and they certainly hit where it hurts most—family income. Because of the importance and complexity of these

employment problems, this chapter concentrates only on that area. (Housing and educational problems are taken up in Chapter 3.) To further simplify the discussion, I also generally focus my analysis on the problems faced by corporate managers and professionals, two of the larger occupational groups in this income range. These problems are similar to many of those encountered by other middle-class African Americans.

So much fuss has been made about affirmative action hiring that little attention has been given to what happens to African American employees (whether or not they are beneficiaries of affirmative action) after they are hired. A closer look reveals no dearth of racial disparities hounding the African American corporate manager or professional. Loneliness, disaffection, stress and hypertension (related to "John Henryism"), "complex racial discrimination" (sophisticated or unconscious racial discrimination, frequently accompanied by nonracial factors), and de facto segregation in high-level jobs are the principal problems. Of these, employment discrimination and segregation reflect the most serious intra-class disparities.

African Americans are seriously underrepresented in many corporate and professional positions. Being the only African American—or, at best, one of only a few—results almost by definition in feelings of loneliness. Such feelings may be heightened by maladroit professional and semi-social interactions with well-meaning white colleagues. An awkward remark ("blacks have a natural ability for basketball" or the traditional "some of my best friends are black") or a racist joke can be very painful. Insulting remarks can cause one to feel relegated to "solitary confinement" on the job.^[9]

To survive in an environment that neither understands nor fully supports them, some African Americans adopt a policy of what the French call soyez méfiant ("be mistrustful").^[10] This survival tactic—deeply rooted in the African American experience and more race-than class-based—inevitably intensifies loneliness. Leon Lewis reflects on soyez méfiant in this passage:

Everything is different when you're black. It's amazing how the quality of one's life can be changed by what might happen, by what you think might happen and by what other people think might happen.

Often I've been invited to cocktail parties, openings and other gatherings of a business or civic nature, and many times I've been the only black person in attendance. I can become very uncomfortable in that setting. My subconscious might start sending up smoke signals, and I think, say, "What if that lady standing near me should suddenly scream?" Every eye would be on me, and I could be in a world of trouble. Why should a thought like that enter my mind? The lady doesn't look as if she is about to scream, but it has happened and who is to say it will never happen again?^[11]

Disaffection is another special problem for the African American middle class. Like V. S. Naipaul living in the garden of the oppressor, the African American corporate manager or professional, working in the same garden, can feel "unanchored and strange."^[12] A feeling of alienation can intensify in the face of racial hypocrisy within the work environment. Disgust and disillusionment can take hold when, in spite of an institution's professed concern for fair employment and meritocracy, qualified minorities are overlooked ("they can't be found"), less demanding standards are applied to white "favored sons," African Americans are paid less than comparably educated whites, and minority employees must cope with a work environment in which policy making and attitudes are shaped by whites who are at best indifferent and at worst antagonistic to their needs.^[13] Expectations of equal treatment with which employees might have entered the institution quickly wither under the harsh light of reality.

Some African American managers and professionals also suffer from hypertension caused by stressful attempts to adapt to a white-dominated work environment. Recent studies have validated this slice of racial experience, long recognized by African Americans themselves, and have also concluded that African Americans overall suffer more hypertension than white Americans. High blood pressure strikes nearly twice as many African Americans as whites, and with more devastating consequences: "Black hypertension victims suffer heart failure at twice the rate of white victims and have 12 to 18 times the kidney-failure rates. Hypertension also gives American blacks the world's second highest death rate from strokes, after the Japanese."^[14]

"John Henryism," a description taken from the fictional African American laborer of legendary strength who died while pitting his sledgehammer against a steam drill, is the term frequently used to define the syndrome of stress and hypertension within the African American middle class. "John Henryism is a manifestation of 'the struggle to get into the mainstream' and is characterized by a belief that one can triumph despite the odds"; unlike the aggressive "Type-A" personality, the John Henry personality "shows extreme patience and tends to suppress anger in order to deflect white hostility."^[15] Roger Wilkins, an African American lawyer and social commentator, reflects on his personal struggle with John Henryism: "I had always to be careful never to break the unstated rules that minimized my difference, the unspoken inferiority that I hoped my [white] friends would ignore. So I was quiet for the most part, waiting for situations to develop before I reacted, always careful, always polite and considerate."^[16]

One study traced John Henryism in a group of graduates of the Meharry Medical College in Nashville, Tennessee. Over a twenty-five-year period, 44 percent of the subjects developed hypertension, owing a large part, according to one observer, to the fact that African American physicians normally practice under more stressful conditions than those faced by their white counterparts. African American doctors have "traditionally practiced alone with limited finances and in situations where they were forced to struggle for patients and acceptance from peers."^[17]

Complex racial discrimination, certainly a contributor to John Henryism, is one of the greatest obstacles facing the African American manager or professional.^[18] Employment discrimination that is subtle, sophisticated, or unintentional is difficult enough to uncover, although its sting is as great as the old-fashioned overt brand of discrimination. Such employment discrimination is doubly difficult to recognize or prove when it is accompanied by a nonracial factor—an African American job applicant may in fact meet fewer of the traditional (though perhaps not critical) qualifications for a job than a white applicant, for example, or a discharged African American employee may have violated an inconsequential company policy. A neutral factor can provide a handy pretext for racial discrimination and can even blind an African

American applicant or employee as to the true reason behind a personnel action.

Disparity between African Americans and whites in the incidence of complex racial discrimination is manifested in several ways.^[19] Among the most telling evidence is the percentage of all employment discrimination cases that are brought by African American plaintiffs and the percentage of judgments won in those cases. Legally, employment discrimination does not arise until a court issues a judgment to that effect. Drawing information from a computerized database, a recent survey of every employment discrimination case reported out of federal court in 1987 found that of the seventy-seven strictly racial discrimination cases reported, sixty-five (slightly more than 84 percent) were filed by African American plaintiffs alone, compared to seven (9 percent) filed by white plaintiffs alone. (Five cases were filed by other minorities.) Virtually all of these cases involved middle-class jobs: teachers, chemists, engineers, journalists, physicians, business managers, and the like.^[20]

It is important to remember that these statistics represent only reported cases, not the total number of employment discrimination cases actually filed in the district courts or appealed to the circuit courts or the Supreme Court in 1987, to say nothing of the claims that never made it to court in that year. District court judges usually report only cases deemed "significant." (As a law clerk to a district court judge, for example, I was given considerable voice in deciding which of the judge's decisions would be submitted for publication.)

It should also be noted that, of the 1,248 employment discrimination cases (including sex, religion, age, national origin, and several other discriminatory bases as well as and in combination with race) filed in the district courts from July 1, 1986, to June 30, 1987 (the United States Courts Administrator's most relevant reporting period), only 11.7 percent ever reached trial. This is a relatively high percentage; on average, only 5 percent of all civil cases filed in the district courts during this period reached trial.^[21] (Most civil cases are voluntarily or involuntarily dismissed or settled for a variety of reasons, both substantive and procedural.)

Although they represent only a small fraction of the employment discrimination cases appearing in 1987, the seventy-seven

reported cases clearly reflect intra-class racial disparity in the experience of complex racial discrimination. Given that these cases survived the weeding-out process and were in fact reported (indicating that the discrimination claims were not shams), they suggest that middle-class African Americans are far more likely—nine times more likely—to encounter some degree of racial discrimination on the job than are middle-class whites. If we take the analysis one step further and compare the number of victories by African American plaintiffs with the number of victories by white plaintiffs, we get an even more definitive sense of the racial distribution of employment discrimination. African American plaintiffs won fourteen of the cases they brought; white plaintiffs won none of their cases.

The low percentage of plaintiff victories (slightly less than 22 percent for African Americans)—or, stated differently, the high percentage of defendant, or employer, victories—tells another important story. These statistics indicate how difficult it is for a plaintiff to win an employment discrimination lawsuit in federal court.^[22] Arguably, the defendants have the edge, not solely because some plaintiffs lack meritorious claims, but also because the Supreme Court has stacked the procedural deck in favor of the employer. As the next section of this chapter explains, certain rules, policies, and practices developed in the context of Title VII litigation place the plaintiff at a decided disadvantage. Of the seventy-seven reported cases, plaintiffs won only eighteen, or about 23 percent. And, of course, "plaintiff" in employment cases means an African American litigant nearly 85 percent of the time (and African American or other minority 90 percent of the time).

Other legal reference sources support the claim that employment discrimination falls more heavily on African Americans than on whites. A perusal of all the federal employment discrimination cases reported between 1975 and 1989 reveals that a clear majority of cases involved African American plaintiffs and that far more African American plaintiffs won their cases than did whites.^[23] The major casebooks are in accord.^[24]

Litigation brought by the federal government's Equal Employment Opportunity Commission (EEOC) provides further evidence. Each EEOC annual report briefly describes the lawsuits the commission is authorized to file in federal court as a plaintiff.

Since at least 1980, the great majority of the cases based on race allege discrimination against African Americans or Hispanics.^[25] The annual reports also list the number of complaints (in the thousands) filed with and processed by the EEOC, although these statistics do not indicate the complainant's race. In most cases, the EEOC finds no cause to believe that a Title VII violation occurred—which some might explain by pointing to the political composihon of the EEOC and its staff, products of the Reagan administration. But when we look at the cases in which the EEOC does find cause and which eventually are filed in federal court and reported, we have already seen that African Americans are involved in most of them as plaintiffs and are also involved in most of the cases in which the plaintiffs are victorious.

At least two other indicators—racial wage gaps and the collective experiences and personal perceptions of individuals—offer compelling evidence that the complex racial discrimination faced by middle-class African Americans is more than an intermittent phenomenon. They provide at least prima facie proof that such discrimination is regular and systemic in places of middle-class employment, from corporations, law firms, law faculties, and newsrooms to the motion picture and television industries.^[26]

In spite of dramatic improvements in the occupational status of African Americans since the 1960s—mainly as the result of improvements in education and affirmative action^[27] —a wage gap still exists between African American and white males of comparable ages and with comparable education and experience. Farley and Allen report as an example that in 1979 young African American lawyers averaged about two dollars less per hour in earnings than young white lawyers.^[28] Unfortunately, the authors do not indicate whether they took account of differences in type and size of law practice or even regional differences in the practice of law.

Other studies offer more cogent evidence of a racial wage gap. One, published by the Rand Corporation in 1986, found that African Americans earned 20 to 30 percent less than comparably educated whites in 1980. Another, published by Money magazine in 1989, reported that this gap had shrunk somewhat, to 10 to 26 percent, in 1987, the latest figures available. One important lesson to be drawn from these studies is that "simply equalizing the

number of years of schooling alone would [still] leave a sizable racial wage gap ."^[29]

Along with statistics on wage gaps, personal observations made by individuals of both races clearly portray a situation of intra-class racial disparity. The numbers and the narratives reinforce each other, with the numbers supporting a suspicion of racial discrimination that African Americans have held for a long time.^[30] Glegg Watson and George Davis, for example, co-authors of Black Life in Corporate America: Swimming in the Mainstream and former co-teachers of a course on multicultural management at the Yale School of Management, believe that complex racial discrimination is prevalent in corporate America and has had a considerable effect on African Americans. Watson asserts in an interview that "black advancement to the top of the corporate pyramid has moved beyond the preparation-and-qualification question and on to a team-acceptance question." Davis is more explicit: "Race is not mentioned much in corporate America, yet it has a big effect on people's careers because management is teamwork—and in teamwork you've got to have a high comfort level among the team members."^[31]

Others share these views. "By and large, it's a matter of chemistry," says an African American partner at Heidrick & Struggles, the nation's largest executive search firm. "Most companies want a guy who is 6-foot-2, blue-eyed, and blonde—what we call the guy who steps out of the IBM catalog. Blacks generally just don't fit that description." The chairman of an African American management firm notes that "headquarters people, who have seen the black manager over time and know that he is competent and articulate, would have no problem, but what they're afraid of is how the guys in Kansas will take this black executive when he comes to town." Even white executives who themselves feel comfortable with African American managers are reluctant to place them in line positions that expose them to racist white managers, who may jeopardize the African American manager's success.^[32]

A 1984 survey of corporate personnel executives by Business Week magazine confirms that even in companies with a strong commitment to affirmative action, African American managers are perceived as "different." "This 'difference,' the study concludes,"

"raises questions about the unacknowledged cultural and racial barriers to the realm of senior management, which is largely white."^[33]

The case is much the same in the nation's newsrooms. Max Robinson, the late co-anchor of ABC News and the first African American anchor of a national news program, recalls that on the day

Ronald Reagan was crowned and our hostages came home, I watched from the sidelines, because ABC chose not to include me in the coverage of either event, even though I [was] the national-desk anchor. . . .[I] looked around and found that . . . suddenly black people disappeared. In an orgy of white patriotism, black people would interfere with the process and point out the reality Americans didn't want to face.^[34]

Other African Americans in network news concur in Robinson's general charges of racial discrimination. Some believe both that their careers have been damaged and that balanced network coverage of African American society suffers because African Americans are kept out of decision-making positions. As Richard Levine reports:

Although the overt racism that simply excluded minorities from network news jobs has long since ended, many blacks feel that an "unconscious racism" . . . on the part of their white superiors handicaps both the coverage of the black community and their own careers. . . . No matter how many black reporters appear on-camera, white producers and executives are running the show.^[35]

The first major poll of minority journalists conducted by a news organization is also replete with findings of complex racial discrimination. Of those surveyed in 1982, 75 percent felt that they did not have "the same chances for promotion as white colleagues"; 51 percent reported that their editors believed "that minority journalists, as a group, are less skilled" than whites; and 10 percent had been "told openly that race was the reason they were refused certain assignments, notably on sensitive subjects including school desegregation." One respondent said: "I believe [white editors] expect less from minority staffers, and only if we do more will we be seen as equal."^[36]

If the 1980s was the "Cosby Decade," it was also the decade of complex racial discrimination in the television and motion picture

industry. There has always been employment discrimination in Hollywood. But "this new strain is more subtle and discreet," and some African American actors believe that it is more "dangerous" than the overt form experienced under Jim Crow, because "those who are guilty of [subtle] discrimination don't even realize it."^[37] Even some of the performers in the hugely successful 1977 TV miniseries "Roots" have encountered racial barriers. Ben Vereen, for example, has experienced racial discrimination under the guise of artistic expression: "I'll want to read for a role I like, but they'll say, 'You can't play that, you have to play the janitor. We want a white actor for that part.'" Another star of "Roots" adds: "If you had been a white actor, and you were in the most popular show in television history, you would have had—at the very least—a job."^[38]

It is difficult to find work environments in which complex racial discrimination is more pronounced than in American law firms and law schools. A 1987 survey by the Minority Employment Committee of the Los Angeles County Bar Association provides insights into the plight of African American lawyers in Los Angeles and other cities. The survey concludes that a "capable minority attorney might not be hired by some Los Angeles law firms, if the firms' partners believe their clients would not work with a non-white lawyer—or that a minority attorney would not fit in at the firm." A named partner of one firm stated that "the client is not always as interested in quality as with someone who fits the mode that they feel comfortable with. Rather than to have someone who might be sharp and a black, they would rather have someone who fits the profile."^[39] Although it may not be prejudiced discrimination, refusing to hire or promote a minority person out of fear that biased clients may take their business elsewhere is at least discrimination about prejudice, which has the same result.^[40]

A similar situation exists in law schools. Some white law professors are predisposed to assess the performance of African American law professors in a negative or hypercritical fashion, are intolerant of even small mistakes committed by these scholars, and tend to deny African Americans the deference or presumption of competence normally accorded to white male law professors—in short, they possess, whether consciously or unconsciously, a set of negative biases against African Americans.^[41]

The existence of such a mindset is reflected in both statistics and personal observations. The percentage of minority teachers on law school faculties is extremely low: for example, of the 5,064 full-time law professors teaching at white-controlled law schools during the 1986–1987 academic year, only 3.7 percent were African Americans.^[42] The turnover rate for minority law professors is also quite high.^[43] Some minority law professors have concluded, based on years of experience, that their white male colleagues seem to believe that only a "superstar" minority should be hired, promoted, or given tenure. Female law professors, also subject to negative prejudging, have similarly noted that law faculties are "only looking for the [female] superstars."^[44]

Some might be inclined to dismiss the problems of affluent African Americans as inconsequential, marginal, or "merely social." But the central point about racial discrimination remains: whether complex or Jim Crow-style, such discrimination harms African Americans by restricting opportunities and undercutting human dignity. In the following passage, Professor Derrick Bell, one of the nation's leading law professors, reflects on an incident of racism at Stanford Law School, which involved a series of faculty lectures offered to first-year law students in response to some student complaints about Bell's teaching. Bell was invited to participate but was not told the real reason. Later, the law school apologized to him, but the pain was not diminished:

The fact of my exclusion from the dialogues that must have taken place before so radical a remedy for student upset was adopted was a denial of my status as a faculty member and my worth as a person every bit as demeaning and stigmatizing to me as the Jim Crow signs I helped remove from public facilities across the South two decades ago.^[45]

Along with complex racial discrimination, racial segregation in the top levels of the middle-class work force is one of the most serious intra-class disparities between the African American and white middle classes. Racially segregated, or underrepresented, work forces evoke strong images of an earlier racial hierarchy, images that harm both races in several ways. Such a picture can, for example, ignite latent racism in some whites, particularly the young or inexperienced. The racially imbalanced work forces at major white colleges and universities, which employ few African

American faculty members and many unskilled African American workers, may well have contributed to the upsurge of campus racism during the 1980s. Jim Crow images may also leave indelible doubts in the minds of whites about the caliber of work African Americans are capable of performing. Most important, however, these images create psychological barriers for African Americans themselves. White-only or white-dominated workplaces convey negative messages, especially to young African Americans: you are unwelcome; you can't perform at this level.^[46] As Lance Morrow, essayist for Time magazine, puts it:

People become only what they can imagine themselves to be. If they can only imagine themselves working as menials, then they will probably subside into that fate, following that peasant logic by which son follows father into a genetic destiny. If they see other blacks become mayors of the largest cities, become astronauts, become presidential candidates . . . and, more to the point, become doctors and scientists and lawyers and pilots and corporate presidents—become successes—then young blacks will begin to comprehend their own possibilities and honor them with work.^[47]

Finally, employment segregation, which isolates African Americans in predominantly white environments, can lead to feelings of loneliness, disaffection, and John Henryism, which can adversely affect performance.

Notwithstanding these deleterious social consequences, images of Jim Crow abound in places of high-level employment. Although the number of African American corporate managers and professionals has increased with the general rise in the occupational status of minorities since the 1960s, African Americans were still underrepresented in these vital occupations well into the 1980s. According to the EEOC, only 4.7 percent of all corporate managers and 4.5 percent of all professionals in 1985 were African Americans.^[48] In individual professions, African Americans held fewer than 1 percent of the partnerships at the nation's largest law firms in 1987; 3.9 percent of the full-time teaching positions in the nation's law schools during the 1985–1986 academic year; 6.3 percent of investment banking jobs in 1985, two years before the Wall Street purge of African American investment bankers; and fewer than 5.5 percent of newspaper editorial posts

in 1982.^[49] These findings are in accord with the work of Farley and Allen, who conclude that "blacks are more concentrated at the bottom of the occupational hierachy than whites, and the only blacks who have attained occupational parity with similar whites are college-educated women."^[50]

Complex racial discrimination and racial segregation in top-level jobs are the most important intra-class racial disparities within the American middle class. They are parents to the loneliness, disaffection, and John Henryism that many African Americans experience. Complex racial discrimination and a racially segregated work force do not exist in a vacuum. Rather, they are linked to the nation's current regime of interracial relations and, more particularly, to that regime's racially subordinating features.

Racial Subordination Through Formal Equal Opportunity

Through its tenet of racial omission, formal equal opportunity subordinates the civil rights interest of the African American middle class, a subordination that is most pronounced within the employment context. Both the strict scrutiny test and judicial treatment of statutory antidiscrimination law force middle-class African Americans to endure, relative to their white counterparts, a disproportionate amount of the employment hardships discussed in this chapter.

Strict Scrutiny Test

The strict scrutiny test can be found nowhere in the Constitution or in its legislative history. It is a legal doctrine invented entirely by judges. Developed as a means to facilitate close judicial review of Jim Crow and other "suspicious" legislative enactments, the strict scrutiny test applies to lawsuits brought under the equal protection clause of the Fourteenth Amendment or the equal protection component of the Fifth Amendment's due process clause. The former constitutional provision protects against state actions, and the latter against federal actions.^[51]

Now a fixture in constitutional law, the strict scrutiny test is the legal system's primary means of implementing formal equal opportunity's racial omission tenet. It commands that race be

omitted from the government's formulation of laws and public policies. More important, it operates to strike down, as a denial of equal protection of the laws, any governmental activity or legislation that either is predicated on an explicit racial or other "suspect classification" or violates a "fundamental personal interest."^[52] An act under scrutiny is saved from judicial strangulation only if the government can meet a twofold burden. First, the classification must be justified by a "compelling governmental interest." Second, the means chosen to achieve the classification's purpose must be the least restrictive, most narrowly tailored means available.^[53]

As applied by the Supreme Court, the strict scrutiny test sets up a standard of judicial review so rigorous as to be fatal to most of the legislation in question. The first burden is especially difficult to meet. Protecting national security and remedying past institutional or individual discrimination are among the few (if not the only) arguments the government has been able to use to demonstrate a compelling governmental interest to the Supreme Court's satisfaction.^[54]

The Court, however, has attempted to balance the interventionist proclivity of the strict scrutiny test with a more deferential form of judicial review. Legislation not predicated on a suspect classification or violating a fundamental personal interest—which describes the great majority of legislative acts—does not offend constitutional equal protection if it can be rationally related to a legitimate governmental purpose. The "rational basis" test provides the widest degree of judicial comity to even speculative legislative judgments.^[55]

Both the strict scrutiny test and the rational basis test are so predictable that the outcome of a judicial review is virtually determined by the type of legislation being reviewed. Legislation involving a suspect classification or a fundamental personal interest most likely will not survive constitutional scrutiny, whereas legislation not involving either of these categories is likely to be sustained. The Supreme Court's analysis for equal protection claims is in this sense outcome-determinative.^[56]

Middle-class African Americans find the strict scrutiny test to be a problem because it quashes voluntary attempts to promote real equal employment opportunity. The test, in short, often

commands the omission of race at the wrong time . Except in a very limited situation, it enjoins the public sector's use of race-conscious employment policies or practices that would promote racial inclusion. In so doing, it treats policies and practices that result in racial exclusion pari passu (on an equal footing) with those that are socially beneficial.

The limited circumstance under which the strict scrutiny test permits governmental bodies to use an explicit racial classification is clear: race can be used only if doing so achieves a compelling governmental purpose. Thus far, remedying a public employer's prior racial discrimination is the only purpose the Supreme Court has found compelling in the employment context. As the Court itself stated: "It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination."^[57]

But establishing prior racial discrimination by an employer is no easy task. Absent the unlikely event that an employer (even in connection with the voluntary use of a racial classification)^[58] either admits that it discriminated or leaves behind "smoking-gun" evidence, the victim's only chance of proving prior discrimination is to prove that the employer violated constitutional or statutory antidiscrimination law. If the asserted violation involves the equal protection clause, the victim will most likely be defeated by the intent test, which requires the plaintiff to prove that an employer intended to discriminate. (The intent test is discussed in detail in Chapter 3.) If the asserted violation involves a federal statute rather than the Constitution, the victim will have to surmount enormous barriers created by Title VII of the 1964 Civil Rights Act.

Thus the strict scrutiny test—specifically, the Supreme Court's color-blind perspective and narrow interpretation of compelling governmental purpose—subordinates the interest of the African American middle class in equal employment opportunity. It does so by making it extremely difficult for a public employer to voluntarily use racial classifications for the purposes of assisting qualified African Americans in catching up with their white counterparts, dismantling psychological and institutional barriers erected by past employment practices, or otherwise overcoming

the present-day effects of earlier subordinating systems. Making it difficult for employers or African Americans to use devices that could purge complex racial discrimination and segregation from the workplace perpetuates rather than diminishes these forms of intra-class racial disparity.

Given the difficulties of proving a violation of constitutional or statutory antidiscrimination law, voluntary racial preferences may be the only way to effectively counteract complex racial discrimination and segregation in employment. Even the Supreme Court recognizes that "affirmative race-conscious relief may be the only means available 'to assure [true] equality of opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.'"^[59] Reports issued since the 1960s by the Department of Labor, the U.S. Commission on Civil Rights, the Rand Corporation, and others support this conclusion and assert that racial preferences have launched many qualified African Americans on successful careers they otherwise would not have entered or dared to pursue.^[60] Placing barriers in the path of voluntary efforts to promote racial inclusion necessarily accommodates, extends, and perhaps even intensifies racial exclusion—the very condition these voluntary efforts are so capable of reversing.

Title VII

Title VII of the 1964 Civil Rights Act is the nation's major antidiscrimination law in the employment context.^[61] Its key antidiscrimination section, Section 703 (a), provides a classic illustration of how Congress has decided to implement the racial omission tenet in federal civil rights laws:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. . . .^[62]

Although Congress made employment discrimination on the basis of race, color, sex, religion, or national origin illegal under Title VII,^[63] it did not define the word discrimination . This omission may have been deliberate; Congress might have believed that the task of defining such a complex term was better left to the courts.

Responding to this challenge, the Supreme Court devised two distinctly different definitions of employment discrimination: disparate treatment (requiring proof of racial motivation) and disparate impact (requiring no such proof).^[64] Both concepts were defined succinctly by the Court in Teamsters v. United States :

'Disparate treatment' such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . . Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. See, e.g., 110 Cong. Rec. 13088 (1964) (remarks of Sen. Humphrey) ("What the bill does . . . is simply to make it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications, not as Catholic citizens, not as Protestant citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States").

Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . . .Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. . . . Either theory may, of course, be applied to a particular set of facts.^[65]

It is difficult to prosecute a disparate-impact claim of racial discrimination in the top levels of the work force, such as law firms and medical corporations. In order to state a claim of such employment discrimination under Title VII, one must rely on sufficient statistical evidence.^[66] Ordinarily, in places of high-level employment, too few African Americans apply for a specific position with a particular employer within a given time frame to create an applicant pool large enough to be statistically significant.^[67] The even smaller numbers of African American employees who work

in these settings engender an even greater statistical problem in promotion cases. Hence, as a practical matter, an African American denied a position or promotion within such select areas of the work force will probably have to seek legal redress under a disparate-treatment theory of employment discrimination.

Other middle-class African Americans often have the option of proceeding under either a disparate-treatment or a disparate-impact theory. African Americans working as teachers, as police officers, as firefighters, or in similar lower-paying middle-class jobs usually have the numbers to sustain the statistical analysis required in disparate-impact cases.^[68] Because the problems involved in disparate-treatment cases can present obstacles to employees at all levels of the African American middle class, the following discussion focuses only on the issue of disparate treatment.

Proceeding under a disparate-treatment theory of employment discrimination will be difficult at best for any middle-class African American. This difficulty has less to do with the fact that Title VII was created when most forms of racism were overt and less to do with the transaction costs that accompany complex litigation than it does with federal case law.^[69] Federal courts have made it extremely burdensome for Title VII plaintiffs to win individual disparate-treatment cases. Proving discriminatory motivation, establishing causation, use of both the unitary litigation model and a less stringent evidentiary standard for defendants in mixed-motive cases, and judicial hostility toward even applying Title VII to high-level jobs are among the most serious obstacles to successfully litigating individual disparate-treatment cases. These obstacles help to explain, at least in part, the low percentage of plaintiff victories in Title VII cases, discussed earlier in this chapter.

The Supreme Court has developed a system of proof for individual, nonclass disparate-treatment cases of employment discrimination.^[70] The plaintiff is given the initial burden of proving a prima facie case of disparate treatment. The central issue addresses the defendant's motivation: was the defendant motivated by a discriminatory animus? The plaintiff can prove the requisite state of mind by using direct, smoking-gun evidence (which is rarely available today) or, inferentially, using circumstantial evidence.^[71] If the plaintiff succeeds, the defendant is given an

opportunity to rebut the plaintiff's prima facie case by showing a "legitimate, nondiscriminatory reason" for the treatment of the plaintiff. If the defendant meets its burden of proof, the plaintiff is then given an opportunity to show that the defendant's stated reason is nothing more than a pretext for intentional discrimination.^[72]

In Texas Department of Community Affairs v. Burdine, the Supreme Court let stand a devastating problem of proof for Title VII plaintiffs by reaffirming earlier Court rulings that a defendant's burden of proving a legitimate, nondiscriminatory reason for a plaintiff's treatment is a burden of production only, not one of persuasion.^[73] In the absence of smoking-gun evidence or an unsophisticated defendant, the Court's holding makes it easy for a defendant to win a disparate-treatment case. The defendant can rebut the prima facie case on the basis of admissible but untrue evidence as to its actual motivation. The plaintiff, not being privy to the defendant's thinking, is left with the near-impossible task of persuading the trier of fact that the defendant's stated motivation is untrue.^[74] Given that the defendant is in the best possible position to know the true reasons for the action taken against the plaintiff, that the alleged discrimination may have left the plaintiff without a job and hence without ready access to employment records, and that courts normally allow the use of subjective reasons in articulating a "legitimate, nondiscriminatory reason,"^[75] placing the burden of persuasion on the plaintiff not only is exceedingly unfair to the plaintiff, but also is a sure way to smother the truth.^[76] It is unrealistic to expect many African American applicants or employees to be able to prove discriminatory intent under these circumstances.

Even if discriminatory intent can be proven, a plaintiff will also have to face the problem of proving causation. In understanding the discussion of causation, it may help to remember that Title VII prohibits discrimination "because of" race, color, religion, sex, or national origin. The key question is simply this: what does the causal connector "because of" mean?

Unfortunately, the law provides no clear answer. Title VII does not define the term. The Supreme Court has not conclusively decided the causation issue. Lower federal courts have ruled on it but have gone in different directions.

Although Title VII does not define the causal connector "because of," it does suggest two standards. The first is presented in Section 703(a)(2), quoted above, which prohibits acts that "tend to deprive" individuals of employment opportunities. This section seems to suggest that an impermissible factor (such as racial prejudice) cannot be among the factors motivating an employer's action. This standard of causation is called the "taint" standard: if an employer's action is based even in part on, or is tainted by, an impermissible factor (specifically, race, color, sex, religion, or national origin), then it is unlawful employment discrimination under Title VII.

Using Section 703(a)(2) as textual support for a theory of causation in disparate-treatment cases is problematic. This section provides statutory support for disparate-impact litigation, which has its own definition of causation;^[77] disparate-treatment litigation derives its authority from another section of Title VII, Section 703(a)(1), also quoted earlier. Recent Supreme Court opinions tend to blur the distinction between disparate-impact and disparate-treatment analysis, however,^[78] and it thus does not seem totally wrong-headed to borrow from disparate-impact authority to make a point regarding the definition of causation in disparate-treatment litigation. Furthermore, the taint standard, also called the "discernible-factor" standard (a personnel decision is unlawful if race, for example, was a discernible factor in the decision),^[79] seems to enjoy textual support beyond Section 703(a)(2). As Brodin correctly argues, the taint standard is consistent with the broad congressional design of Title VII—namely, "to eliminate . . . discrimination in employment based on race, color, [sex,] religion, or national origin."^[80]

Another section of Title VII, suggests a different approach to causation. Section 706(g), patterned after the National Labor Relations Act's remedial provisions,^[81] sets forth the type of relief a victorious plaintiff may receive under Title VII. The last sentence reads:

No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended

or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 704(a).^[82]

This sentence would seem to address only the question of remedy. But the entire Section 706(g) actually resulted from an amendment to Title VII, an amendment whose purpose was to specify to a federal district court that a Title VII violation can be found only when race, color, sex, religion, or national origin is the sole motivation behind an employer's action.^[83] This is sometimes called the "sole-factor" standard: causation is established in a Title VII case only when the employment decision is based solely on one of the impermissible criteria.^[84]

There is, however, legislative history that clearly contradicts this reading of the statute. Congress, for example, rejected another amendment to Title VII that would have reworded "because of" in Section 703(a) to read "solely because of."^[85]

Federal courts have been no more decisive than Congress in resolving the causation issue. In McDonnell Douglas Corp. v. Green, the Supreme Court seemed to adopt the taint standard suggested in Section 703(a)(2). The Court stated that "[i]n the implementation of . . . [personnel] decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise."^[86]

In McDonald v. Santa Fe Trail Transportation Co ., the Supreme Court suggested that the proper causation standard might be somewhere between the liberal taint standard and the stricter sole-factor standard. Responding to the plaintiff's claim that the "legitimate, nondiscriminatory reason" offered by the employer discharging workers was mere pretext, the Court said:

The use of the term "pretext" in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies . . . [N]o more is required to be shown than that race was a "but for" cause.^[87]

McDonald thus adopts a "but-for" causation standard: Title VII is violated when the plaintiff shows that but for the use of an impermissible criterion (race, color, sex, and so on), the adverse personnel decision would not have been made.

A recent Supreme Court plurality opinion, Price Waterhouse v. Hopkins, provides important dicta on the causation issue. Justice O'Connor and the three dissenting justices (Rehnquist, Scalia, and Kennedy) ruled that the but-for standard of causation applies to whoever bears the burden of persuasion in disparate-treatment litigation under Title VII.^[88] The four-justice plurality opinion (Brennan, Marshall, Blackmun, and Stevens), in contrast seemed to suggest that something less than but-for causation applies to at least the plaintiff's burden of persuasion. As the plurality stated: "To construe the words 'because of' as colloquial shorthand for 'but for causation' . . . is to misunderstand them. . . . We conclude instead, that Congress meant to obligate . . . [Hopkins] to prove that the employer relied upon . . . [impermissible] considerations in coming to its decision."^[89] Justice White, the swing vote, saw only a semantic difference between the formulations offered by the two camps.^[90] Obviously, however, both camps saw more than a semantic difference between their positions.

There is nevertheless some indication that a majority of the justices in fact agree on a single standard. Five of the justices (the plurality opinion and Justice White's concurring opinion) expressly point with approval to the Court's opinion in Mt. Healthy City School District Board of Education v. Doyle,^[91] a First Amendment case that applied the "substantial-factor" standard (the impermissible criterion must be a substantial motivating factor behind the personnel action). Justice O'Connor also seems to accept the substantial-factor standard,^[92] but it is unclear precisely how this standard differs, at least in the eyes of the plurality, from the but-for standard clearly favored by Justice O'Connor and the three dissenting justices. Thus, at the Supreme Court level, the standard of causation remains fuzzy.

The lower federal courts have joined the Supreme Court and Congress in failing to agree on a causation standard. The Eighth Circuit has used the taint standard, sometimes calling it the discernible-factor test. The Third, Fourth, Fifth, and Seventh Circuits have adopted the but-for standard. The First, Second, Sixth, Ninth, Eleventh, and D.C. Circuits have embraced the substantial-factor standard, using various terms such as "significant," "motivating," "determinative," "dominant taint," or "dominant factor" to refer to it.^[93]

In short, assuming that the employer can meet its burden of

production under Burdine, the success of the plaintiff's disparate-treatment case may depend on which causation standard the court applies. A plaintiff will have an easier time establishing a Title VII violation in jurisdictions employing the taint standard than in jurisdictions employing the stricter but-for or substantial-factor standards. No jurisdiction can legally use the sole-factor standard.

If the plaintiff in the Title VII disparate-treatment case succeeds in proving intent and establishing causation, he or she faces two more hurdles, should the case proceed to the mixed-motive stage. This is the stage of disparate-treatment litigation that goes beyond the pretext stage discussed earlier in this chapter. The issue in a pretext case is whether either a permissible or impermissible factor—but not both—motivated the adverse employment decision. The issue in a mixed-motive case is which of two or more proven factors, one of which is impermissible, played the dominant role in the decision. Thus, in a mixed-motive case, there is no single "true" motive behind the decision.^[94] Both of the hurdles a plaintiff faces at this stage arise from the Supreme Court's opinion in Price Waterhouse v. Hopkins .

The first obstacle is engendered by the Court's adoption of a unitary litigation model in mixed-motive cases. Six of the nine justices (Brennan, Marshall, Blackmun, and Stevens, who formed the plurality, and White and O'Connor, who wrote separate concurring opinions) held that the employer's burden of proof in a mixed-motive case is part of the liability phase of the litigation, enabling the employer to avoid not only the imposition of a remedy but also a finding of liability if it should meet the burden of proof. The Court based its holding on the argument that, because Title VII clearly seeks to preserve a measure of freedom of choice for the employer by authorizing it to make employment decisions against an employee on the basis of permissible criteria, the employer must be given the opportunity to meet its mixed-motive burden of proof (showing dominant reliance on a permissible criterion) before a finding of liability is made.^[95]

The Court expressly declined to follow the model used in the Eighth and Ninth Circuits and in the Hopkins district court opinion by Judge Gerhard Gesell, in which a distinction is drawn between liability and remedy in mixed-motive cases.^[96] Under this litigation model, the plaintiff's burden of proof goes to the issue of liability and the defendant's to the issue of remedy. If the plain-

tiff proves that the employment decision was motivated by an impermissible criterion, the plaintiff proves disparate-treatment discrimination and, in the absence of an affirmative defense, a violation of Title VII. At this point, the employer can avoid the imposition of certain Title VII remedies (mainly back pay and reinstatement) by proving that it would have reached the same decision in the absence of the impermissible motive.^[97]

The bifurcated litigation model does not provide relief for the plaintiff if the employer meets its burden. But it does serve Title VII's goal of promoting racial inclusion to a greater extent than the unitary model does, because the bifurcated model makes it easier for the plaintiff to prove employment discrimination. This in turn augments the deterrence value of Title VII in at least two ways. First, a finding of liability allows a judge to issue an injunction against future acts of discrimination in the workplace.^[98] Should the employer violate this injunction, it could be cited for contempt of court. Second, a finding of liability entitles the victorious Title VII plaintiff to receive attorneys' fees—the real deterrent feature of Title VII, because the monetary amounts of Title VII remedies are so small.^[99] Shifting the plaintiff's attorneys' fees to the defendant helps to deter future acts of discrimination by the defendant and other Title VII defendants.

The second ruling in Hopkins that will surely hurt plaintiffs' chances of winning mixed-motive cases is the acceptance of the preponderance of evidence standard. The plurality and concurring opinions held that the employer's burden of persuasion in a mixed-motive case requires the employer to show by a preponderance of evidence—rather than by clear and convincing evidence—that it would have reached the same decision even if it had not relied on the impermissible criterion. The Court reasoned that the preponderance of evidence standard, which is easier to meet than the clear and convincing evidence standard, is applicable because it is part of the conventional rules of evidence that generally apply in civil litigation.^[100] But given that the employer, as even Justice O'Connor recognizes in her concurring opinion, "has created the uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion,"^[101] it seems fair to place the responsibility on the employer to clarify the issue of causation convincingly.

Mixed-motive litigation matters little in some federal courts. Some federal judges have relaxed Title VII's protections in relation to high-level jobs, and others have taken a "hands-off" attitude.^[102] As the Second Circuit observed, these courts have rendered employers controlling high-status jobs "virtually immune to charges of employment bias, at least when the bias is not expressed overtly."^[103] This judicial policy of self-abnegation was actually more widespread in the 1970s than it is today. It began with cases challenging the employment practices of colleges and universities regarding faculty. Many judges felt strongly that the judiciary was unqualified to second-guess faculty personnel decisions and hence that "the federal courts should hesitate to invade and take over . . . education and faculty appointments at a University level."^[104]

Congress may have agreed with this rationale in 1964 when Title VII, as originally passed, exempted from its coverage faculty employment practices in all educational institutions.^[105] The express reason for the exemption is unknown, however, because it has virtually no legislative history.^[106] But by removing the exemption in 1972, Congress made it clear that judges must scrutinize college and university employment with the same degree of care given to blue-collar employment.^[107] More important, the legislative history of the 1972 amendments to Title VII expressly states that all employers covered by the act are to be governed by the same standards.^[108]

These judicially created obstacles to successful litigation of individual disparate-treatment cases—allocation of the burden of proof, the but-for or substantial-factor standard of causation, the unitary litigation model and the relaxed evidentiary standard in mixed-motive cases, and poor judicial attitude—may exist in spite of, rather than because of, the civil rights interest that is at stake for African Americans. There may even be "compelling" countervailing interests underpinning these laws and policies. But it cannot be gainsaid that these laws and policies deny priority to a crucial civil rights interest of the African American middle class—namely, equal employment opportunity. The fact that academic institutions won all but one of the twenty-three racial discrimination cases brought in federal court against them between 1971 and 1984,^[109] to say nothing of the low percentage of plaintiff vic-

tories in race-based employment cases generally, is indicative of the lack of regard Title VII now shows to middle-class African Americans.

By subordinating the interest of the African American middle class in employment, Title VII contributes to the problem of complex racial discrimination. The existing judicial interpretations and applications provide little protection against such discrimination and may even encourage would-be discriminators. Required only to produce evidence probative of a legitimate, nondiscriminatory reason for disparate treatment and protected by the but-for or substantial-factor standard, as well as by the unitary litigation model and the preponderance of evidence standard in mixed-motive cases, an employer has a real opportunity to discriminate—whether the motivation is racism or some perceived economic benefit—and to get away with lying about it. Judicial disdain for Title VII also provides such an opportunity, without requiring even the effort of lying.

Title VII's racially subordinating features also contribute to conspicuous racial stratification in high-level jobs. The burden of proof and the causation standards are so onerous for plaintiffs, the unitary litigation model and the preponderance of evidence standard so favorable to defendants, and the judicial attitude so obvious that the chances of winning a Title VII lawsuit are remote. These obstacles also undoubtedly discourage many African Americans from even filing a Title VII charge with the EEOC or from pursuing the matter all the way to federal court. If African Americans do not win Title VII cases or file Title VII lawsuits, Title VII is obviously less effective in doing what Congress intended it to do. As the Supreme Court itself has stated: "[I]t was clear to Congress that '[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,' . . . and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed."^[110]

Summary

One of the largest segments of African American society, the middle class is also the most assimilated into mainstream American

society. A typical African American middle-class household consists of a nuclear family in which both parents work, with one of them likely to be a manager or professional. The family is likely to own the home in which it lives and to possess a late-model automobile, a complete line of household appliances, and investments or savings. Annual household income ranges from $ 25,000 to $ 75,000 (reaching $ 100,000 or more when the upper class is included). Like its white counterpart, the average African American middle-class household is relatively stable and comfortable.

Unlike the white middle class, however, the African American middle class faces hardships caused by race that in some instances threaten the success members of this class have achieved. Long after the death of Jim Crow, color remains a significant factor affecting a skilled and talented person's chances for personal happiness and material success. Loneliness, disaffection, stress and hypertension, complex racial discrimination, and conspicuous racial stratification in high-level employment are the major features of intra-class racial disparity within the American middle class. Complex racial discrimination and racially segregated top jobs are the most serious employment disparities; they fuel the other racial disparities and have serious negative social consequences. The high percentage of employment discrimination cases filed and won by middle-class African Americans, in contrast to middle-class whites; the high percentage of cases filed by the EEOC on behalf of middle-class African Americans; racial wage gaps; and the collective experiences of African Americans pursuing middle-class careers—all offer evidence of the depth and continued existence of the American race problem.

Complex racial discrimination and racial segregation in high-status jobs are perpetuated in part through the racial subordination engendered by formal equal opportunity. Civil rights laws and practices fully sanctioned by the federal government and ultimately designed to vindicate the racial omission tenet—the strict scrutiny test in racial preference law, the burden of proof and the standard of causation in disparate-treatment litigation, the unitary litigation model and evidentiary standard in mixed-motive cases, and poor judicial attitude in antidiscrimination law—fail to give priority to the civil rights interest of the African American middle class in equal employment opportunity. These

judicially created features of formal equal opportunity subordinate this important civil rights interest, in the case of the strict scrutiny test, by enjoining or discouraging public-sector employers from using the only proven means of promoting racial inclusion and, in the case of other features, by decreasing the odds of a plaintiff winning an individual disparate-treatment case under Title VII. Such racial subordination depletes the arsenal of weapons that can be used to combat complex racial discrimination and segregation in employment; it undercuts the defenses of the African American middle class against racial exclusion. The strict scrutiny test's rejection of racial inclusion and Title VII's inability to unearth complex racial discrimination on an individual basis leave these African Americans more, not less, vulnerable to employment discrimination, underrepresentation, and other employment hardships.

Racial subordination in this area of the law may also contribute to intra-class racial disparity in a more active way. It may in fact actually encourage employment discrimination or segregation. When the courts show such little regard for the employment interests of the African American middle class, this situation provides a would-be discriminator with the opportunity to discriminate and with encouraging signals about the possibility of getting away with it. Some employers may read the courts' construction of Title VII, particularly the reluctance to apply Title VII to top jobs, as a green light to engage in subtle forms of employment discrimination, a sign that it is permissible to discriminate, as long as you do so discreetly or cleverly.

Chapter Three—
The African American Working Class

Defining Characteristics

Using the income approach discussed in Chapter 2, we can define the African American working class as those individuals and families with an annual household income ranging from $10,000 (or, roughly, the poverty line) to $25,000, the income floor for middle-class households. A family in this income range is likely to rent a house or apartment rather than owning its own home. Relative to a middle-class household, this family probably "eats less meat and more potatoes, drinks less wine and liquor but more beer." Despite income limitations, however, the working-class family does not usually live on a subsistence budget; households in this category are able to function with "a sense of self-respect and social participation."^[1]

Based on the $10,000–$25,000 income range, approximately 33 percent of African Americans belong to the working class, compared to slightly more than 28 percent of white Americans. With approximately 34 percent of African Americans falling below the poverty line, compared to approximately 15 percent of whites, the various socioeconomic classes in African American society are roughly the same size. (See the table and the chart on pp. 37 and 38.)

A more detailed profile of African American working-class households reveals specific characteristics:

• Thirty-seven percent of these households consist of family units headed by both husband and wife. Among this group,

roughly 33 percent of the men are semi-skilled or unskilled blue-collar or service workers; the other 67 percent are divided, approximately equally, into four groups: clerical workers, farmers (farm laborers or farm owners), those not in the labor force (a term describing individuals who are not working and are not actively looking for work—for example, "discouraged workers" who have stopped looking or those who are disabled, on public assistance, or between jobs), and retired persons. About one-third of the women in this group are employed as semi-skilled or unskilled blue-collar or service workers, and another one-third work in clerical positions; about 17 percent are homemakers (not employed outside the home), and an equal percentage are not in the labor force.

• Twenty-five percent of the households are headed by women. About one-fourth of these female heads of household are semi-skilled or unskilled blue-collar or service workers, and another one-fourth are clerical workers. The remaining 50 percent are either currently unemployed or not in the labor force. Rose suggests that those in this group are likely to be disabled or receiving public assistance in a large urban setting.^[2]

• Nineteen percent of the households consist of individual men. About one-third of these men are clerical workers, another one-third are semi-skilled or unskilled blue-collar or service workers, and one-third are not in the labor force.

• Nineteen percent of the households consist of individual women. These women can be divided into three approximately equal groups: clerical workers, professionals, and retired persons.^[3]

Some working-class African Americans live in constant fear of slipping into poverty. Many who have crossed the line out of poverty nevertheless remain perilously close to the world of hunger and homelessness. Others who have never experienced poverty live but a misstep away from its open doors—a divorce, the untimely death of a spouse, the unemployment of a working spouse, a catastrophic illness in the family, old age, or retirement can result in dramatic changes for the worse. Indeed, between 1978

and 1986, 5.2 percent of the nation's working class fell below the poverty line or into the low end of the working class. And, during this same period, a shocking seven million Americans were added to the ranks of the poor.^[4]

Several factors explain why many in the American working class, regardless of race, are financially unstable. Irrational economic behavior, expediency, and a lack of long-term planning are certainly destabilizing forces within this segment of society.^[5] But income itself is the crucial factor. With incomes below the national average (which was approximately $ 25,000 in 1986),^[6] members of the working class simply have little margin for error. Thus, working-class households have to be smarter consumer spenders, more careful financial planners, and better disciplined in general than middle-class households. These characteristics are not easy to sustain when one lives under the stress of a job that may be low-paying, uninteresting, physically demanding, or closely supervised—circumstances that diminish one's ability to shape the events in one's life.^[7]

Although working-class African Americans suffer class subordination neither more nor less than their white counterparts, the African American working class, unlike the white working class, must contend with certain other societal hardships that can be more destabilizing and demoralizing than the racially neutral factors. These societal barriers to a better life constitute the American race problem, or intra-class racial disparity, within the American working class.

The Subordination Question

Intra-Class Racial Disparity

Working-class African Americans encounter particularly serious racial disparities in two areas of American life: housing and education. Housing discrimination and segregation, often accompanied by violence, are the primary problems in the first area. Two sets of problems are dominant in education: forms of discrimination and segregation in primary schools, on the one hand, and the low enrollment of African American students in colleges and graduate schools, on the other hand. The disparities in housing and higher education also adversely affect the African American

middle class, particularly at the low-and middle-income levels, and, to that extent, the discussion in this chapter is also applicable to the middle class.

Choosing to focus this chapter on housing and education does not imply that the employment disparities within the American working class are insignificant—clearly, these problems are serious. For example, racial wage gaps still exist in several sectors of the working class, and African American workers—last hired, first fired, and less protected by unions—have borne the brunt of plant shutdowns and relocations during the 1970s and 1980s and face greater career instability in many occupations.^[8] Collective experience and personal perceptions also support assertions that racial disparities exist on the job. A recent survey shows that 80 percent of African Americans (compared to 37 percent of whites) believe that if equally qualified persons compete for the same job, an African American is less likely than a white to be hired. And 62 percent of African Americans (versus 41 percent of whites) believe that their chances of advancing to managerial or supervisory positions are generally not as good as those for whites.^[9]

Thus, many of the problems of employment discrimination faced by working-class African Americans are similar to those discussed in Chapter 2. But unlike middle-class individuals, most working-class people lack the time, money, and flexibility to pursue Title VII litigation, which is both expensive and protracted. African American workers who are unionized can sometimes choose to file a grievance over employment discrimination, a procedure that is less expensive and more efficient than a Title VII case. But in many instances there is no adequate mechanism for redress.

Despite the seriousness of these employment hardships, this chapter will not analyze them in detail and will instead focus on intra-class racial disparities in housing and education. It is in these two areas that the impact of formal equal opportunity and its tenets—as interpreted and applied by Congress and the courts—is most clearly seen.

Housing

Housing discrimination and segregation, sometimes buttressed by acts of violence, are rooted in the overall history of

racial segregation in American society.^[10] The style of residential segregation has varied throughout the centuries in this country. During slavery, free African Americans, who needed to be within walking distance of white residential and business areas, lived interspersed among whites. Ironically, the demand for their inexpensive labor and the primitive state of transportation brought African Americans in closer proximity to whites than is the case today. After slavery, most African Americans were concentrated in low-income pockets that dotted metropolitan areas; those few who could afford it and who wanted to do so, however, could live in virtually any part of town. At the turn of the century, Jim Crow laws, real estate practices, and personal intimidation began to isolate African Americans to the least desirable sections of town, and residential areas became heavily segregated.

Present-day residential patterns have evolved directly from this style of housing segregation. African Americans today are primarily isolated in inner-city ghettos, rural areas, or suburban communities that form segregated rings around cities. Despite the increasing number of minorities moving to the suburbs and the decreasing rate of segregation overall since the 1960s (a decrease so small that it will still leave cities "highly segregated in the foreseeable future"), many of our communities remain nearly as segregated today as they were in the 1960s.^[11] In a recent poll, 69 percent of the whites questioned guessed that fewer than 5 percent of the people in their neighborhoods were African Americans, whereas 45 percent of African Americans guessed that more than 75 percent of their neighbors were members of their own race.^[12]

Most African Americans prefer to live in racially integrated communities,^[13] for numerous reasons. Segregation limits the housing market for African Americans, which may increase their housing costs; it also typically relegates them to low-quality, older housing, which families are more likely to rent than to buy.^[14] These segregated residential areas usually experience poor community services (erratic garbage collection, lack of snow removal and street or other structural repairs). Some also argue that, by confining African Americans to the inner city, segregated housing puts them at an employment disadvantage, because job opportunities are growing more rapidly in the suburbs than in the inner

city (although others claim that unemployment rates for African Americans in the suburbs are almost as high as the rates for those in the cities).^[15] Residential segregation is, however, unquestionably a major contributor to segregation in the public schools. By engendering racial isolation, housing segregation also helps to perpetuate stereotypes and to reinforce Jim Crow beliefs in the inferiority and "invisibility" of African Americans—the notion, elegantly explored in Ralph Ellison's Invisible Man, that African Americans are devoid of substance, flesh and bone.^[16]

The disproportionality of housing discrimination within the American working class, reflected to at least some extent by the existence of such obvious and extensive residential segregation, is evidenced in several ways. Although the great majority of the plaintiffs in housing cases filed in federal court since 1975 were African American or Hispanic,^[17] the record of housing discrimination judgments is probably not the best source of information; in 1987, at least, the number of race-only housing discrimination cases decided by the federal courts was too small to be statistically significant.^[18] Evidence is readily available, however, in the dozens of fair housing studies conducted periodically by local and regional offices of the Department of Housing and Urban Development (HUD).^[19] These studies are designed to test the rental housing market for housing discrimination. A typical study begins with a telephone survey of advertised apartment vacancies, followed by a site survey conducted by both minority and white teams. Each test team usually consists of two or three "apartment hunters" (a couple and an individual), one of whom would normally be identified by telephone voice either as white or as an African American or other minority. Usually, after one team has inquired about a vacancy by telephone and made a follow-up visit to the site, the other team duplicates this procedure. The teams do not exchange information during testing.

In such a study in Boston, forty-two tests were conducted on eighteen apartment houses. The white team was invited to the apartment complex to see a unit in every test, whereas in thirty-one of the tests the minority team was told not to come to the apartment building, because no units were available. A Detroit study of eleven rental complexes, each of which was tested four times, yielded similar results: white teams were treated more fa-

vorably than minority teams in thirty of the forty-four tests. According to HUD, these and other studies conducted in cities throughout the nation "produced firm evidence" of housing discrimination.^[20]

For a sense of the human dimension of housing discrimination, one can turn to the popular media. In 1986, after enduring months of racial taunts and vandalism, an African American family was forced to move out of its home in a working-class neighborhood on Cleveland's West Side. A year earlier, an interracial couple and their two children had been subjected to numerous threats, racial slurs, and acts of vandalism by angry white neighbors demanding that they and an African American family leave a working-class Italian enclave in southwest Philadelphia. Earlier that same year, an African American woman living alone in a Chicago apartment building—the only African American in that complex—walked out of her apartment to find her car resting on slashed tires. The act was repeated later, and this time her headlights were also smashed. On other occasions, she returned home to find her telephone line snipped, her apartment ransacked, and an unsigned letter containing racial slurs and a threat: "Last chance, get out." The letter was the final blow; she moved out of her apartment.^[21]

Housing discrimination today can also be more subtle. In fact, like much discrimination in the post-1960s, it often takes the form of complex racial discrimination, which is subtle in the sense that it may be sophisticated, unconscious, or institutionalized and is sometimes accompanied by nonracial factors.^[22] In contrast to those who suffer from the "Al Campanis syndrome," practitioners of complex racial discrimination are usually clever enough to hide racist feelings.^[23]

Housing officials have noted, for example, that African Americans "often encounter discrimination with a smile." As one official describes: "Many times people are denied [housing] and know they've been denied, but don't know it's discrimination. . . . The person may be very nice and may never directly say anything that leads [prospective tenants or homeowners] to know it's something about them . . . but [they are] told that a unit is not available." The Kentucky Human Rights Commission cites another common example of "smiling discrimination" in housing: a rental agent

tells an African American family, "I'm very sorry, but we don't have a vacancy today"; later, the same agent tells a white family the same thing but adds, "I expect we'll have one tomorrow."^[24] Numerous examples of smiling discrimination in other areas of interracial relations appear daily in the news media.^[25]

Smiling discrimination is not the only form of complex racial discrimination encountered in the area of housing. One observer claims that "the ploys are endless." In Atlanta, for example, "one ruse is to demand earnest money in cash from a black prospect. When the would-be-buyer returns from the bank, he is told, 'Sorry, the property has been taken.'" Another maneuver allows rental and sales agents to tip off one another "by writing the names of white applicants in script." "Steering"—real estate agents deliberately directing African Americans to minority or mixed neighborhoods and whites to predominantly white neighborhoods—is yet another example. According to University of Chicago urbanologist Gary Orfield, steering is "one of the driving engines of resegregation. . . . If you can stop that, you've solved a big part of the problem."^[26]

Redlining and blockbusting are two additional forms of housing discrimination. Redlining is the refusal to lend mortgage money to persons residing in predominantly minority (usually African American) neighborhoods. Blockbusting involves real estate agents warning white homeowners of a minority group "invasion" (and a presumed decrease in property values) to frighten them into selling their houses to an agent at below-market prices. The agent then resells the houses to minorities at inflated prices. Blockbusting is especially pernicious, not only because it is discriminatory and segregative but also because it is a primary cause of overpriced housing for minorities.^[27]

Education

In examining intra-class racial disparity within the context of primary education (by which I mean kindergarten through high school), it is useful to keep in mind the historical relationship between African Americans and public schools. Despite the fact that African American students today are more likely than any other racial or ethnic group to attend public schools,^[28] this relationship has been an unkind one, not unlike that of a badly abused child struggling to escape ubiquitous par-

rental mistreatment, neglect, and violence, both physical and psychological. The story unfolds within the radius of an intellectual and emotional swing between desegregated and segregated schools on the part of African Americans. From the days of slavery to today, the pendulum has swung first from desegregated to segregated schools and then back toward desegregation, with now perhaps another swing in the direction of separate schools.

The first American public schools were desegregated, as early as the 1640s in Massachusetts and Virginia. African American children could attend these schools and were educated alongside white children. They had to pay a high price for the "privilege" of sitting next to a white child, however, for mistreatment and racial insults by white pupils and teachers alike were part of the regular curricula throughout colonial America.^[29]

After the Revolutionary War, African Americans took steps to establish separate schools for their children. In Massachusetts, for example, Prince Hall, a prominent war veteran, petitioned the legislature for an "African" school so that African American children could have a safe and supportive environment in which to learn. The petition was rejected, but in 1798 a white teacher founded such a school in the home of Primus Hall, the son of Prince Hall. Two years later, African Americans petitioned the city of Boston to fund a separate school. Although this petition was also rejected, African Americans proceeded to set up their own schools, hiring two Harvard-educated men as instructors. In 1818, the city of Boston began funding these existing schools and even opened another separate school in 1820, ten years before the modern system of public education (with state support, compulsory attendance, and so forth) became a fixture throughout the country. With the change from desegregated to segregated schools, many African Americans thought they had won their struggle for quality education.^[30]

But hidden costs came with public support of African American schools—costs such as second-class treatment and loss of control. The Boston School Committee, for example, dismissed the school master at one of the schools it had begun funding, even though he had been selected by the African American parents. Worse, the committee then ignored the complaints of incompetence and sexual misconduct that were lodged against the man it

installed to replace the schoolmaster. Parents also complained about the quality of education at the African American schools, believing it inferior to the education white children were receiving at their schools. Having lost control with the advent of state funding, African Americans felt entitled at least to education of a quality equal to that found in white schools. Lacking that, they supported a lawsuit filed to desegregate the Boston public school system.^[31]

The suit was brought in a Massachusetts court under the constitution and laws of Massachusetts, and eventually it reached the state's highest court. In 1850, the case was decided against the plaintiffs. The court, in Roberts v. City of Boston, held that the Boston School Committee's segregation policy was reasonable and that there was no principle of state law guaranteeing African Americans treatment from government equal to that accorded whites.^[32] After the adoption of the equality amendments to the federal Constitution between 1865 and 1870, the general issue presented in Roberts came before the U.S. Supreme Court in Plessy v. Ferguson . In that case, the Court gave the federal Constitution's imprimatur to the separate-but-equal racial policy. Segregation remained the law until the Supreme Court overturned Plessy in Brown v. Board of Education in 1954.

Although Brown swung the pendulum back to desegregation, where it had been originally, millions of minority children today, more than a generation after Brown, still receive an inferior ("unequal") education. Even with the decline of segregated schools since the 1960s, a substantial number of African American children still attend racially isolated and educationally inferior schools.^[33] But equally troubling is what Jennifer L. Hochschild calls the "second-generation discrimination" and "resegregation" that occur within integrated schools, practices that have a negative effect on the quality of education African American students receive in these schools.^[34]

These practices take a variety of forms. One involves the tendency of administrators and teachers to automatically place African American students in classes for the educable mentally retarded (EMR) without careful attention to what may in fact be other, simpler problems of learning or development. Although such classes are intended to help rather than to harm students,

the effect is to resegregate the school internally. At best, such policies associate African American students with slow learning; at worst, they reflect the avowed or unconscious prejudice of those responsible for the placements. Hochschild reports that "in the South, blacks were overrepresented in EMR classes by a factor of 330 percent in 1968; overrepresentation increased to 540 percent by 1974."^[35]

Tracking (grouping students by supposed ability) is another form of second-generation discrimination and resegregation. Among students from the same socioeconomic class, African Americans are more likely than whites to be tracked in compensatory education classes and less likely to be placed in gifted or college preparatory programs. "About half of all black students are in low-achievement reading groups, compared to one-fifth of whites; over one-quarter of whites but fewer than one-tenth of blacks are in high-achievement reading groups"; such racial disparity in tracking "isolates students, associates skin color with skill, and leads parents, teachers, and students alike to expect little and demand less from blacks."^[36]

Second-generation discrimination also occurs in the disciplining of students, including suspension, expulsion, and other punishment. African American students on average are suspended "at a younger age, for a longer time, and more often than whites." In some districts, African American students are punished five to ten times more often than white students.^[37]

Racial disparity also exists in the techniques used to desegregate or integrate schools. African Americans are often asked to shoulder the burden of mandatory student busing. Mandatory busing is usually considered "successful" (that is, acceptable to whites, as evidenced by minimizing "white flight" to the suburbs or to private schools) when it is one-way (African Americans are bused to white schools rather than the reverse), when the percentage of African American students in white schools remains below 33 percent, when whites keep control of the school system, and when mandated decreases in the rate of racial isolation in segregated schools are relatively slight and very gradual. Short of mandatory busing, whites are most inclined to accept integration techniques tied to educational components that are particularly beneficial to white students (such as magnet schools with

programs for gifted or academically successful students) or that involve tracking. These techniques, in effect, use African American children as stepping-stones for the academic success of white children.^[38]

School integration has also been a painful experience for African American administrators and teachers. In the South, for example, thousands of African American principals, teachers, and other personnel were fired, demoted, or not rehired when the public schools were integrated. (Some government officials claim that the problem of such discrimination against administrators and faculty "has been largely solved.")^[39]

Dissatisfied with racial disparity in integrated schools, many African American leaders, including some of those who participated in the long battle for school desegregation and in the enforcement of Brown I' s mandate, have followed the path taken by Prince and Primus Hall two hundred years ago and have begun to argue for separate schools. For example, federal judge Robert Carter, who helped to argue Brown I before the Supreme Court in 1954, believes that the Brown I plaintiffs and the Supreme Court may have been mistaken to equate equal (or quality) education with integrated education or to think that the former could be derived from the latter. He is, however, certain that by pursuing desegregation or racial mixing without regard to the quality of education it produces for African Americans, we run the risk of becoming "prisoners of dogma."^[40] Derrick Bell, who edited a volume titled Shades of Brown: New Perspectives on School Desegregation, has been an assiduous critic of integrated schools, arguing, as Judge Carter does, that they may not be in the best educational interest of African American children and, for that reason, "may not be the relief actually desired by the victims of segregated schools."^[41]

Bell's reading of the African American community may not be tar off the mark, for at least one opinion poll shows that support for integrated schools among African Americans declined from 78 percent in 1964 to 55 percent in 1978. In 1964, 75 percent believed that the government should enforce school integration; by 1978, only 60 percent felt this way.^[42] This poll, of course, is more than a decade old, and it also shows that a (slight) majority of African Americans still supported integrated schools; neverthe-

less it may be indicative of a trend—or at least of the serious questions being raised.

Separate, or African American, schools can in fact resolve certain of the historical and modern problems that have been encountered with integrated schools. Specifically, in a separate school, African American teachers and administrators are in charge; and the predominance of African American students allows the staff to make EMR placements, to track students, and to mete out discipline in a nonbiased and nondiscriminatory manner and without stigmatizing a racial group as slow, insufficiently motivated, or troublemakers. African American culture and awareness are taken seriously by teachers and administrators; role models are created and leadership is nurtured by the presence of African American class presidents, cheerleaders, and other student leaders; and minority students are no longer used as pawns to win white support for integration.^[43]

Although separate public schools may be able to resolve some of the problems of control and mistreatment that have plagued integrated schools, it is nevertheless true that racially isolated schools alone cannot provide a quality education. Without the financial resources to pay for excellent staff, state-of-the-art equipment, a rich collection of classic and modern books, and other essentials, children will not receive good basic schooling in reading, science, mathematics, history, and other fundamentals. Because "green follows white"—that is, whites usually control financial resources—"black schools are in grave danger of being short-changed."^[44]

Racially isolated schools also lack cultural diversity. African American children, many of whom live in segregated housing, run the risk of growing up without learning how to deal effectively either with racism or with other races and cultures. The importance of cultural diversity in education was recognized more than a century ago by a Kansas court:

At the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature in all its phases, with all its emotions, passions and feelings, loves and hates, its hopes and fears, its impulses and sensibilities; there they may learn the secret springs of human actions, and the attractions and repulsions, which lend with irresistible force to particular

lines of conduct. But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of their society which surrounds them; and as all kinds of people must live together in the same society, it would seem to be better that all should be taught in the same schools.^[45]

The benefits of cultural diversity are not lost on African Americans. Although only a slight majority may favor integrated schools, those who speak in favor of separate schools clearly do so only out of disdain for the discrimination and segregation that occur within integrated schools—an indication that most African Americans do, under acceptable circumstances, favor integrated schools, just as they favor integrated housing.

The hardships that arise within the context of public primary education fall most heavily on those African American families who lack the resources to avoid or escape the harmful effects of inner-city schools. Such families cannot afford private schools, private tutorial services that supplement public education, or a house in the suburbs where the public schools, even those in predominantly African American suburban communities, provide better basic education than that found in inner-city schools.^[46] Thus, students from poor, working-class, and perhaps some lower-middle-class households are more likely than students from wealthier households to be denied good basic schooling.

Working-class African Americans are probably hit the "hardest" in the sense that individuals in the poverty class may have concerns more immediate than schooling, notwithstanding the importance of education to this class. Members of the lower middle class have more resources (income, flexibility, and greater control over their lives) that might allow them to move to the suburbs, to arrange for professional tutoring, or to intervene in the inner-city school's educational process. Such intervention might include spending more time helping a child with homework, traveling to libraries around the city to find a new array of books for the child, exposing the child to museums and cultural events, or simply pushing the school to direct more of its limited resources toward the child. Some African American children have been able to emerge from inner-city schools with strong academic

skills as a result of such parental intervention. These options, however, are often not quite as available to the working class.

Those children who are able to successfully navigate the primary school system continue to face problems of racial disparity as they look ahead to higher education. If intergenerational upward mobility in American society increases steadily with education, and if college and postgraduate education are the real keys to improving the socioeconomic status of African Americans,^[47] then the future for the African American working and middle classes does not look promising. In 1980, whites were more than twice as likely as African Americans to have completed college or earned an advanced degree.^[48] Since 1980, matters have gotten worse, not better.

A study conducted by the American Association of State Colleges and Universities shows that although the number of African American high school graduates grew by 29 percent between 1975 and 1982, the number of these students enrolling in college declined by 11 percent during this period. In contrast, the number of white high school graduates increased by 7 percent, and white college enrollment decreased by less than 1 percent during the same period. The decline in African American college enrollment at some schools far exceeded the national average; at Oberlin College in Ohio, for example, enrollment of African American students fell 39 percent in a twelve-year period ending in 1985.^[49]

The American Council on Education tells the same story. Focusing on eighteen-to-twenty-four-year-old whites and minorities, the council's most recent report states that the general trend in college enrollment from 1976 to 1988 is unmistakable: "Whites have increased their college attendance rates while college participation by African Americans and Hispanics has declined." About 68 percent of all African Americans in this age range graduated from high school in 1976 (compared to approximately 82 percent of whites), and slightly more than 33 percent of these high school graduates enrolled in college that same year (compared to 33 percent of whites). Thus, the college enrollment rate of African Americans was slightly better than the rate for whites in 1976. In 1988, however, both the high school graduation and college enrollment rates for African Americans were lower than those of whites: the high school graduation rate for African Americans was

about 75 percent (compared to approximately 82 percent for whites, virtually unchanged since 1976), and the college enrollment rate for African Americans was roughly 28 percent, lower than the rate in 1976 and in at least five other years since 1976. (The college enrollment rate for whites had risen to 38 percent in 1988, the highest ever.)^[50]

Likewise, the number of African Americans receiving degrees fell sharply between 1976 and 1987, especially for African American males. During this period, the number of African Americans earning bachelor's degrees fell about 4 percent overall and about 12 percent for African American males (compared to an increase of approximately 4 percent for whites overall and a decrease of roughly 9 percent for white males). The number of master's degrees earned by African Americans decreased by almost 32 percent overall and 34 percent for African American males (compared to decreases of about 13 percent for whites overall and approximately 24 percent for white males). The number of Ph.D.s earned by African Americans declined by about 22 percent overall and roughly 47 percent for African American males (compared to about a 5 percent decline for whites overall and a 21 percent decline for white males). Although African American females earned 30 percent fewer degrees at the master's level by the end of this period, they, like their white counterparts, earned more bachelor's degrees and Ph.D.s in 1987 than they did in 1976. In terms of degrees conferred during these years, it can be concluded that African Americans sustained "the greatest losses among all racial/ethnic groups, and [that] these losses have been accelerated by the disappearance of African American males from college campuses."^[51]

It is impossible to overstate the importance of college and postgraduate education for African Americans. The dearth of highly educated individuals not only affects the social and economic status of African Americans overall; it also limits both the supply of African American educators needed to improve the quality of education in predominantly minority inner-city schools and the supply of role models and community leaders who are indispensable in any prescription for solving the American race problem. Increasing the ranks of college-educated African Americans must become a top priority of the nation.

Certainly, many factors account for the problems African Americans face in both housing and education. The next section of this chapter tries to demonstrate that a nexus exists between these intra-class racial disparities and our civil rights laws and policies. Through its tenets of racial omission and racial integration, formal equal opportunity subordinates working-class African Americans—racial subordination that exacerbates, accommodates and even encourages complex racial discrimination and de jure or de facto segregation in housing, poor or ineffective public schooling, and low enrollment in higher education.

Racial Subordination and Housing

Working-class African Americans have a legitimate civil rights interest in equal housing opportunity. They demand the right to seek housing wherever it is available, the right to live wherever they choose. Some argue that nonlegal factors explain housing segregation in today's society, factors such as the desire for ethnic homogeneity and the inability of African Americans to afford expensive housing. Although it is true that ethnic groups tend to cluster in isolated sections of metropolitan areas, it cannot be denied that African Americans are more isolated from whites than any other major racial group is; nor can it be denied that such segregation has persisted at high levels for decades while segregation between whites and other minorities has declined much faster. Even ethnic groups who have only recently emigrated to the United States are less segregated from whites than are African Americans.^[52] It is also true that African Americans as a group may find it difficult to afford expensive housing, but this does not completely account for segregation, for, as research has shown, "blacks of every economic level are highly segregated from whites of the same economic level."^[53]

I believe that defects in our civil rights regime provide a better explanation. Several features of the legal apparatus designed to implement the racial omission tenet deny priority to the interest of working-class African Americans in fair housing and hence contribute to housing discrimination and segregation within this segment of society. The intent test, the strict scrutiny test, the paper-tiger statutory scheme of the Fair Housing Act of 1968, low

damage awards, and protracted litigation are the major subordinating features of civil rights law since the 1960s.

Intent Test

The intent test comes into play when a federal constitutional challenge is made—usually under the equal protection clause of the Fourteenth Amendment^[54] —against a state, city, or municipal land-use law, policy, or practice having an exclusionary effect on African Americans or other minorities. Limited only by human imagination, land-use devices that preclude minorities from obtaining affordable housing in desirable areas come in a variety of configurations: a new state constitutional provision requiring prior voter approval in a local referendum before any municipality can develop a federally funded low-rent housing project; a suburban township's charter provision requiring prior voter approval of all zoning changes within the township by a 55 percent referendum vote, the effect of which is to preclude rezoning for low-income housing; a city's decision to rezone property that a private group had targeted for a low-and-moderate-income housing project; or a city's denial of a religious order's request to rezone a segment of its own land from single-family to multiple-family housing, the effect of which is to prevent the owner from constructing low-and-moderate-income housing on its land.

The U.S. Supreme Court and the lower federal courts have given constitutional clearance to these and other land-use manipulations, in spite of their obvious exclusionary effect on working-class African Americans. According to the federal courts, these tactics are permissible under the Constitution's equal protection clause because they are "facially-neutral" as to race—they do not contain an explicit racial classification like those prevalent in the days of Jim Crow; there is no "whites only" or "niggers stay out" language of the face of these laws. They are not, therefore, racially discriminatory.^[55]

The fact that these laws do have a visible effect on most African Americans may, the Supreme Court concedes, indicate the existence of racial discrimination. But the Court has placed a burden on plaintiffs that is more difficult to scale than the property barriers themselves. A plaintiff must prove that the legislative body enacting the land-use barrier actually intended to exclude minori-

ties. No matter how outrageous the exclusion, the intent test remains the standard of liability for a civil rights claim brought under the Constitution.

Washington v. Davis is the seminal case on the intent standard of liability. This 1976 Supreme Court case was filed by African Americans applying for jobs with the police department in Washington, D.C. Their rate of failure on a written examination was significantly higher than that of white applicants. The lawsuit claimed that the exam was racially discriminatory, in violation of the Fourteenth Amendment's equal protection clause. Disagreeing with lower federal courts, which at that time had held that disproportionate effects standing alone suffice to prove racial discrimination, the Supreme Court said that "to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement."^[56] The intent standard has been upheld in subsequent Supreme Court decisions.^[57]

Effects are not, however, entirely irrelevant to an equal protection claim. They can be used as a basis for proving discriminatory purpose. They are among a panoply of factors probative of a discriminatory state of mind. As the Court stated in Village of Arlington Heights v. Metropolitan Housing Development Corp., proof of discriminatory intent requires "a sensitive inquiry into circumstantial and direct evidence of intent."^[58] In a more recent case, Rogers v. Lodge, which dealt with voting rights under the equal protection clause, the Supreme Court was even more direct: "[Discriminatory motive] may often be inferred from the totality of the relevant facts, including the fact, if true, that the law bears more heavily on one race than another."^[59]

Although systemic disparate effects constitute a relevant area of inquiry—if only as a means of probing discriminatory intent—the Supreme Court has not really lightened the plaintiff's heavy burden of reading the defendant's state of mind. Because the defendant in land-use and other equal protection cases is normally an institution of government, the plaintiff's burden can at times be nearly impossible to satisfy. The Supreme Court itself in Personnel Administrator v. Feeney has indicated, albeit inadvertently, just how difficult the plaintiff's task can be.^[60]

This case concerned a law passed by the Massachusetts legislature that granted military veterans absolute preference for state jobs. Because 98 percent of the veterans were males, this law had the foreseeable and natural effect of excluding females from state jobs, and it was challenged on equal protection grounds. Reversing the lower court, which found the law's adverse impact on women too inevitable to have been "unintended," the Supreme Court ruled that discriminatory purpose "implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."^[61] How can a plaintiff realistically meet this incredible burden of proof? How useful are such "relevant facts" as foreseeability and magnitude of disparate impact in probing discriminatory intent? When can it objectively be said that these inferences of intentional discrimination have ripened into proof?

Some of these concerns have been raised even by justices of the Court itself. No justice has been a more thoughtful critic of the Supreme Court's approach to the equal protection clause than Justice John Paul Stevens. He criticizes the intent test on the grounds that it lacks a "judicially manageable standard for adjudicating cases of this kind," and he also observes:

[I]n the long run constitutional adjudication that is premised on a case-by-case appraisal of the subjective intent of local decisionmakers cannot possible satisfy the requirement of impartial administration of the law that is embodied in the Equal Protection Clause. . . . The costs and the doubts associated with litigating questions of motive, which are often significant in routine trials, will be especially so in cases involving the "motives" of legislative bodies.^[62]

With his usual perspicuity, Justice Stevens points out the utter nonsense of the intent test: "[I]t is incongruous that subjective intent is identified as the constitutional standard and yet the persons who allegedly harbored an improper intent are never identified or mentioned."^[63]

The intent test, in short, makes the task of winning an equal protection case against a legislative body extremely difficult, if not impossible. By holding on to the intent test—which is mentioned

nowhere in the equal protection clause—the Supreme Court refuses to give priority to the civil rights interest of working-class African Americans in housing cases. The Court is telling these African Americans that "in spite of" their legitimate interest in breaking through land-use barriers that limit where they can seek affordable housing—and "in spite of" the absolute illogic of the intent test—the Supreme Court will not abandon or modify the current standard of liability under the equal protection clause.^[64]

It is true that all those who make claims under the equal protection clause are subject to the limitations of its standard of liability. But the promise and the agony of equal protection litigation are not evenly distributed between African Americans and whites. The Fourteenth Amendment was "passed in large part to protect" African Americans.^[65] Since Brown v. Board of Education, equal protection under the Fourteenth Amendment has been a critical tool in the struggle for racial equality in this country. The equal protection clause has special meaning and consequence to a vulnerable people.

Some of that consequence is apparent in the housing area, where the intent test necessarily contributes to the special housing problems of working-class African Americans. This test accommodates, and may even encourage, complex racial discrimination and segregation, for the standard of liability is so difficult to meet that many instances of housing discrimination and segregation simply cannot be redressed. Municipalities bent on maintaining a racially exclusionary way of life are virtually assured of prevailing in a private lawsuit if they are smart enough to keep their true motives hidden. This naturally discourages victims of housing discrimination and segregation from even attempting to bring lawsuits under the equal protection clause. The low probability of being successfully sued also provides little incentive for municipalities to change exclusionary land-use laws, policies, or practices. In fact, the intent test is so predictably onerous that would-be discriminators or segregationists may read it as a signal from the federal government that, in the final analysis, housing discrimination and segregation are permissible as long as true motives are kept private and everything is done with a smile.

Strict Scrutiny Test

One of the most effective ways—some might say the only effective way—to counteract complex discrimination and segregation in housing is through the remedial use of racial preferences. Voluntary rather than court-imposed or other involuntary use of racial preferences can play a crucial role in resolving issues of racial discrimination and segregation. In the area of housing, racial occupancy controls, or "benign quotas," are the most common form of voluntary racial preferences.^[66]

Racial occupancy controls are housing policies or practices that manage desegregation through the use of racial quotas. Mainly used in public housing, racial occupancy controls seek to create stable, desegregated communities by regulating residency on the basis of race.^[67] Thus, depending on the racial composition of a particular neighborhood or housing development, a housing authority may give preference to an African American or to a white family so that the percentage of both racial groups will remain roughly constant.

The necessity for such racial management is predicated on social science data showing that as a predominantly white community becomes poor and more African Americans move in, whites gradually abandon the community. The loss of white residents, resulting in the transition to a predominantly African American population, is commonly referred to as "tipping." Architect and city planner Oscar Newman has testified that the "tipping point is a quantity that is difficult to predict with precision. It has been variously estimated, in different factual contexts, as ranging from a low of 1% black to a high of 60% black. Most social scientists and housing experts agree that under normal circumstances tipping begins to occur at between 10% and 20% black occupancy."^[68] Economist Anthony Downs states the case for racial occupancy controls by observing that "almost all racially integrated neighborhoods and housing developments that have remained integrated for very long have used deliberate management to achieve certain numerical targets as to the proportion of minority-group occupants."^[69]

Although some lower federal courts have upheld the use of racial occupancy controls, others have not.^[70] In addition, the Reagan Justice Department won an important case against such controls.^[71] The reason for the problems these controls have en-

countered is clear: racial occupancy controls—a most intense and blatant form of race-conscious social engineering—strike at the very heart of the racial omission tenet. In so doing, they violate the strict scrutiny test, which dictates that race must be omitted from the formulation of laws and public policies.

Racial occupancy controls cannot survive faithful application of the strict scrutiny test's two-tier analysis. Heavily predicated upon a racial (and hence suspect) classification, such controls invoke strict judicial review. Without evidence of prior racial discrimination perpetrated by the housing authority or the municipality imposing the controls (such as an admission of guilt), a governmental purpose compelling enough to justify use of controls seems lacking. Other governmental interests—such as nurturing positive interracial relations and preventing the resegregation of communities—should be, but are not, compelling enough to trigger a favorable ruling under the strict scrutiny test.

The strict scrutiny test's treatment of racial occupancy controls highlights its fundamental defect: the inability to distinguish between race-conscious policies that engender racial exclusion and those that promote racial inclusion . Applied to the former—to Jim Crow laws, for example—the strict scrutiny test is commendable; it promotes racial progress. But applied to the latter—to racial occupancy controls or other forms of affirmative action in the public sector—the test is reprehensible; it enjoins racial progress.

This paradox is perhaps inevitable. The fundamental purpose of the strict scrutiny test is to implement the tenet of racial omission, to prohibit the government's use of race as a factor in the formulation of laws and public policies. But dogged adherence to this perspective is bound to have a negative effect on those who continue to suffer from the government's conscious use of race in the past. Sometimes, the conscious use of race in the reverse direction is needed.

It is true that some African Americans could themselves be denied housing in a community or project utilizing a racial quota. But it is clear that this form of racial discrimination is vastly different from traditional discrimination for several reasons. First, racial occupancy controls seek to foster racial inclusion; traditional racial discrimination attempts to stigmatize and exclude

African Americans. Second, these controls are limited in scope and duration. Third, most working-class African Americans denied housing in such a case would probably be willing to move on to desegregate or integrate another community or would consider their temporary denial of housing a small price to pay for racial progress; these same individuals, however, would probably not tolerate the old brand of discrimination.

The strict scrutiny test, in short, commands the omission of race in the government's formulation of laws and policies regulating access to housing, except under a most compelling circumstance (as a remedy for prior racial discrimination by the housing authority or municipality, for example). Given the difficulty of proving such prior discrimination under the intent test, it is clear that unless there is an actual admission of prior discrimination, the compelling circumstance that allows the government to use racial occupancy controls may never materialize. This application of the strict scrutiny test realistically denies working-class African Americans the use of a proven means of counteracting widespread, institutionalized discrimination and segregation in housing.

Fair Housing Act

The Fair Housing Act of 1968, also known as Title VIII of the 1968 Civil Rights Act,^[72] provides minorities with an alternative to a constitutional challenge against housing discrimination and segregation. Unlike equal protection law, the Fair Housing Act is free of the constraints imposed by the intent test and the strict scrutiny test.^[73] It is also unfettered by the Constitution's governmental-action requirement, which means that the act applies to private parties—homeowners, realtors, lending agencies, and others.^[74] In spite of these benefits, the act is virtually useless in the fight against housing discrimination and segregation. Its effectiveness was strangled years ago by Congress, and other branches of government have inhibited all attempts to breathe new life into the legislation.

No other conclusion seems fair or accurate: the Fair Housing Act is poorly structured and administered. The 1988 amendments to the act, discussed in Chapter 6, constitute a belated official confession of the act's impotence. Unfortunately, the amendments do not fully solve the problems. In any case, the pre-amended

Act is more pertinent to a discussion of intra-class racial disparity, because it was in force in that form during every year from the late 1960s until 1988.

The Fair Housing Act prohibits discrimination on the grounds of race, color, religion, or national origin in the sale or rental of housing. Redlining is expressly proscribed. These prohibitions are designed to promote "the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.^[75] This policy, however, is a toned-down restatement of the 1949 Housing Act's policy that "every American family" should be provided "a decent home and suitable living environment . . . as soon as feasible."^[76]

The watered-down policy statement presages other anemic features of the 1968 act. For example, its antidiscrimination provision was and continues to be vitiated by several statutory exemptions. One exempts a single-family house sold or rented by a person who owns fewer than four single-family houses. Another is called the "Mrs. Murphy's boardinghouse" exemption, a provision that exempts any owner-occupied building "containing . . . no more than four families living independently of each other."^[77] These exemptions have not been eliminated by the 1988 amendments.

These statutory exemptions promote racial exclusion by providing government sanction for housing discrimination in certain contexts. More than that, they may be seen as actually encouraging discrimination and segregation, especially in the heavily segregated single-family housing market. For this reason, these exemptions are arguably unconstitutional under the Supreme Court's holding in Reitman v. Mulkey .^[78] In this case, the Court held that California's famous Proposition 14, which amended the state's constitution to give all persons the "absolute discretion" to sell or rent their property as they saw fit, violated the U.S. Constitution because it had the effect of nullifying fundamental state policies against racial discrimination, of involving the state in such discrimination, and hence of "encouraging" private housing discrimination.

Sanctions provided in the pre-1988 Fair Housing Act were seriously defective—in fact, they were so impotent as to be an embarrassment. Actual damages were often meager ($500, $1,500, $3, 500), and punitive damages, which are designed to deter

prospective wrongdoers, were limited to $ 1,000.^[79] Clearly, these paper-tiger sanctions neither compensated victims not discouraged discriminators. Fortunately, the 1988 amendments significantly increased these sanctions.

Governmental administration of the pre-amended act was also flawed. Although the Department of Housing and Urban Development was (and remains) largely responsible for administering the act, it lacked a crucial administrative tool: enforcement powers. Only the Justice Department or an injured private citizen could initiate a civil complaint.^[80] Prosecutors were frequently overburdened. During the Reagan administration, they also became ideologically resistant to prosecuting many of the cases that arose.^[81] Typically, an injured party is in a poor position to initiate litigation, usually lacking the time or resources. The 1988 amendments provide a much better enforcement scheme—twenty years too late.

The Fair Housing Act thus subordinated and continues to subordinate the civil rights interest of the African American working class. It forces members of this class to endure any form of housing discrimination—old or new—an exempted discriminator can envision. Even apart from its exemptions, the pre-amended act, rather than being a deterrent, for years conveyed to would-be discriminators and segregationists in words and by deeds that the federal government was not terribly interested in opposing housing discrimination or segregation.

Damages and Protracted Litigation

The low monetary relief awarded in housing litigation, as well as the time and effort required to successfully prosecute a lawsuit, also frustrates the interest of working-class African Americans in equal housing opportunity. Such subordination is not limited to constitutional or pre-1988 Title VIII litigation but also arises in the context of what is called "Section 1982" litigation.

Section 1982 is derivative of the Civil Rights Act of 1866.^[82] Its name is taken from its current codification in the U.S. Code. Section 1982 is a short provision, which reads in full: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.^[83]

The provision was little used until 1968. In that year, it experienced a kind of judicial resurrection in the landmark case of Jones v. Alfred H. Mayer . The Supreme Court held in this case that Section 1982 "bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment."^[84] Significantly, the link to the Thirteenth Amendment is based on the Court's realization that "when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery."^[85]

Section 1982's usefulness in fighting housing discrimination and the herding of men and women into ghettos is severely limited, however, by the amount of monetary relief traditionally awarded in housing litigation. Punitive damages were frequently and may continue to be limited to the $ 1,000 ceiling prescribed in the pre-1988 Fair Housing Act.^[86] And, rather than the five- to seven-figure awards plaintiffs routinely receive in some tort cases for such things as emotional distress, victorious plaintiffs in housing cases frequently receive negligible compensatory damages—as low as $ 500, $ 1,500, or $ 3,500.^[87] As the California Attorney General stated, these awards "barely cover the costs of difficult, time-consuming civil rights litigation."^[88] Bell offers an explanation for this extraordinary situation:

There is seldom a major out-of-pocket loss in a housing discrimination case. Usually the real injury suffered by the plaintiffs is the deep humiliation of racial rejection that is no less painful because it is deemed to be an intangible harm. Some courts have recognized this form of injury as a compensable type of damage through awards for emotional distress or embarrassment. . . . It is possible that the generally low level of these damages is in part due to the fact finder's lack of personal experience with this type of injury. It may also be due to an effort to find middle ground between the progressive legislation which is in some ways in advance of social realities, and the residual racism which makes it difficult to enforce such legislation fully.^[89]

All civil rights litigation is protracted. It takes years to go from the filing of a complaint to the rendering of a judgment by a court.^[90] Working-class African Americans simply lack the time and resources to commit themselves to such an ordeal. Even if

damages could cover the cost of litigation, it would still be difficult for many to take extensive—or even any—time out from work and family to participate fully in complex litigation. The wait itself may be enough to discourage the most ardent civil rights plaintiff.

Meager damages and protracted litigation place the African American working class in a poor position to defend itself from housing discrimination and segregation. Regardless of how complex or simple the discrimination, litigation would not be cost-efficient, in terms of either money or time. Knowing this, prospective discriminators or segregationists are not deterred and may even feel that the law, being so accommodating, provides them with tacit permission to discriminate.

Racial Subordination and Education

Primary Education

Formal equal opportunity contributes to intra-class racial disparities in primary education through the implementation of the racial omission and racial integration tenets by school systems and the courts. These tenets are applied in a manner that, intentionally or not, denies priority to the civil rights interest of the African American working class in quality education. Such racial subordination in turn contributes to second-generation discrimination and resegregation in integrated schools and to a lack of cultural diversity and adequate educational resources in racially isolated schools.

The tenet of racial integration fosters this subordination when it is used as the basis of integration plans that allow teachers and administrators to give less attention to the educational needs of African American students (including the need for racial pride and self-esteem) than to the educational needs of white students. This results in the unequal treatment and placement of African American children, discussed earlier in this chapter. Particular techniques used to implement school integration, from one-way busing to less coercive methods such as magnet schools in which the best resources are distributed to white students, also place a disproportionately heavy burden on African American children.

The intent test is the principal civil rights doctrine implementing the racial omission tenet in primary education. It prohibits a

school board or a state government from intentionally operating dual school systems, one white, the other minority. As a precondition of invoking the remedial power of a federal court, however, plaintiffs must prove that the defendant school board or state government intentionally established or maintained the dual school systems in question. Proof of segregative intent is required because, as in the case of exclusionary land-use laws, the equal protection clause is the relevant source of judicial authority. But, once again, the intent standard of liability is nowhere to be found in the Fourteenth Amendment or its legislative history; it is simply a judicial invention.^[91]

Once segregative intent is established, a court has broad "inherent equitable" discretion to order new taxes or approve a wide variety of other desegregative measures tailored to the constitutional violation. Racial balancing is one such measure. Mandatory or voluntary busing, magnet schools, pupil or faculty quotas, and school district rezoning are typical examples of racial balancing. In the parlance of civil rights lawyers, this cluster of racial balancing measures is often referred to as "Swann remedies," because the Supreme Court approved their use in the famous case of Swann v. Charlotte-Mecklenburg Board of Education .^[92] Judicial authority to order Swann remedies was confirmed in a companion case, Davis v. Board of School Commissioners, in which the Supreme Court ruled: "Having once found a violation, the district court or school authorities should make every effort to achieve the greatest possible degree of actual desegregation . . . [and consider the use of] all available techniques." Significantly, the Court also stated: "The measure of any desegregation plan is its effectiveness ."^[93]

Racial balancing fosters two ingredients necessary for quality education. The first is cultural diversity. There simply is no other sure way to provide cultural diversity within segregated school districts than to use some form of racial balancing. The second involves good basic schooling. Although it would be wrong to think that predominantly African American schools necessarily provide poor schooling, it cannot be denied that many of these schools lack sufficient educational resources to do the job that is needed. To the extent that a predominantly white school district provides better education than a predominantly African American

one, racial mixing between the two will give African American children better exposure to quality instruction. Indeed, in spite of second-generation discrimination and resegregation, studies show that the academic achievement of African American children improve in integrated schools, with no effect on the academic performance of white students.^[94]

The phenomenon of "white flight" is a serious problem in school desegregation and has defeated many attempts to achieve racial balancing within single school districts, for it depletes the number of white pupils available for racial mixing within a particular district. White flight occurs when white parents send their children to private or religious schools or, most often, move to the suburbs, where exclusionary zoning ordinances erect economic and racial barriers for African Americans with low and moderate incomes.

Current school desegregation law has created its own barriers for those attempting to deal with this problem. In what is now known as Milliken I, the Supreme Court ruled that the intent test applies to every independent school district included in a desegregation plan. Segregative intent on the part of each autonomous school district must therefore be established before that district can be forced to participate in a school desegregation plan.^[95]

Although it is the most widely attempted desegregative measure, racial balancing is not the only response to school segregation. In some cases, racial balancing may not even be a feasible remedy, given the racial composition of the area. Provided that segregative intent is established, a school desegregation plan can, alternatively, allow racially isolated schools to tap into public funds to pay for educational enrichment programs. These programs emphasize good basic schooling more directly and intentionally than racial balancing does. Some instructional programs may also focus on racial pride, African American history and culture, and other subjects dealing with the special educational needs of African American children. These remedial programs do not, however, attempt to tackle the problem of racial isolation, for they cannot create cultural diversity.^[96]

Milliken II is the seminal case on educational enrichment programs. In that case, the Supreme Court held that a district court

may order state officials to share in the future cost of educational enrichment programs. The Court reasoned that these programs respond to a constitutional violation and are designed to restore injured parties to a position they would have occupied had there been no constitutional violation.^[97]

Educational enrichment components can stand on independent legal grounds. Lower federal courts have approved educational enrichment programs even though the desegregation plans in which they appeared contained no racial balancing measure. Some lower federal courts have even approved such programs over the objection of school authorities.^[98] Desegregation plans composed only of educational enrichment components may be the only feasible form of school "desegregation" for school districts in which one race is overwhelmingly predominant.^[99]

Educational enrichment programs and racial balancing may be useful remedies, but they are hard to come by. The intent test is no less an obstacle to African Americans in school desegregation cases than it is in housing cases. Proving a legislative body's state of mind is extremely difficult; school officials can easily hide their motives from public scrutiny. Discriminatory motivations may be even easier to conceal in the North than in the South, because the former's history of de jure segregation is not as extensive as the latter's.

The intent test, in short, is no friend of the African American working class. By making the task of proving segregative intent in school cases very difficult, the intent test subordinates the interest of this class in equal educational opportunity. This subordination both frustrates attempts to culturally diversify racially isolated schools and impedes efforts to acquire sufficient resources to support good basic schooling in institutions that cannot be culturally diversified. If the Supreme Court provided more effective equipment to deal with an educational problem that is in large part the legacy of prior racial subordination, much of that problem would come to an end—an end that is long overdue.

Higher Education

Low enrollment in colleges and graduate schools has several causes. There is, of course, the undeniable fact that African Americans score an average one to two standard deviations below the mean on standard tests of all kinds, although

this fact must be seen in light of the continuing discussion of how these tests may be biased against African Americans.^[100] Another important factor may be the upsurge of racism on college campuses during the 1980s. Such racism, as Joseph Duffey, chancellor of the University of Massachusetts at Amherst, has recognized, creates "a perception that blacks and other minorities are no longer welcome on college campuses."^[101] Most unsettling, campus racism may adversely affect the academic progress of African Americans already in college, an obstacle that must seem formidable to a high school student contemplating the future. Color can affect the character or candor of the advice one receives from white professors and academic advisors. Also, as one observer notes, "subtle racism may be creating a sort of self-fulfilling prophecy, denying to many black and other minority-group students, no matter how bright and well-prepared they are, full participation in higher education at its best."^[102] Such slights and insults as being the last person picked as a lab partner, the recipient of requests to feel your hair or the extra muscles the coaches claim you have in your legs, or within hearing distance of the white student in the dormitory who proclaims that he "didn't want niggers living on the floor" cut deeper than wounded pride and hurt feelings.^[103] Many educators believe that "the way minority students are perceived and treated at a school has a direct bearing on their ability to perform well academically. 'Success and the feeling of belonging are intimately connected.'"^[104]

The dearth of African American faculty members must also have an effect on a young African American's decision to go to college. African American teachers and professors not only serve as important role models but also can help students deal with racism and its pernicious effects. The absence of this essential resource from campus may be seen as a strong indication of the college's true feelings toward African Americans—that they are unwelcome.^[105]

The fact that so many college-educated African Americans must still contend with employment discrimination may also be very discouraging for high school students who are considering college. Vulnerability to employment discrimination dramatically discounts the market value of an African American's college de-

gree. Why incur the added expense and years of study needed to acquire a college education when, as 62 percent of African Americans believe, their chances of advancing to managerial or supervisory positions are not as good as those for whites?^[106] Along with campus racism and the paucity of minority college professors, racial discrimination in the nation's top jobs may help to explain why African American high school students have not responded well to expanded recruitment programs instituted by many colleges and universities in response to the college enrollment problem.^[107]

Cutbacks in federal financial aid contribute significantly to the low number of African Americans enrolled in college. According to a report by the United Negro College Fund and the National Institute of Independent Colleges and Universities, the shift in federal financial aid from direct grants to loans since 1980 has hit African Americans especially hard.

Some 42 percent of UNCF students come from families whose income is at the poverty level or below, and 30 percent are from families earning less than $ 6,000 a year. . . . These same students have fewer alternative resources to fall back on. Their families are poorer, they earn less at their summer jobs, they are more likely to live in states that offer relatively small amounts of grant assistance and they receive little institutional assistance.^[108]

Samuel DuBois Cook, president of Dillard University, an African American university in New Orleans, offers this insight about the effects of declining federal grants:

What we are seeing is the undercutting of hope, the erosion of ambition and expectation. The availability of loans doesn't necessarily solve the problem. In a lot of cases, you're talking about loans that amount to an entire family income. A lot of young people are simply afraid to undertake that kind of obligation, even for the worthy cause of education.^[109]

Significant reductions in federally and privately funded recruitment programs for gifted African American high school students also worsen the college enrollment problem. Upward Bound, for example, which is run through federal grants to colleges, served some 33,000 students in 1985, compared to a peak of 51,000 students in 1973. On the whole, Upward Bound and three major

private programs "served about 85,000 fewer students [in 1986] than five years [earlier].^[110]

The racial omission tenet is certainly among the most important reasons there are fewer African Americans attending college today than there were ten years ago. Enforcement of this tenet by colleges and universities, as well as by federal officials, has had a direct impact on the number of African American college students. Since 1978, colleges and universities have placed less emphasis on race in the admissions process. This shift in emphasis did not come out of the blue; rather, it came as a response to a Supreme Court decision, Regents of the University of-California v. Bakke, that at least in part embraces the racial omission tenet.^[111]

In Bakke, a divided Supreme Court ruled five to four that state educational institutions could not set aside a specific number of slots for which only racial minorities could compete. Of the majority, only Justice Powell rested his decision on the Constitution (the equal protection clause). Justice Stevens and the other three justices who joined in his opinion (Burger, Stewart, and Rehnquist) felt that there was no need to reach the constitutional issue, because the quota could be invalidated on statutory grounds. They specifically held that the quota violated Title VI of the 1964 Civil Rights Act, which prohibits federal funds from going to programs that discriminate on the basis of race, color, or national origin^[112]

Going the opposite direction, the Court also ruled five to four that the equal protection clause does allow state educational institutions to use race in "a properly devised admissions program." For Justice Powell, race could be used only as one factor in the admissions process and only to achieve a diverse student body. But for Justices Brennan, White, Marshall, and Blackmun, race could be used to counteract the lingering effects of prior racial subordination (including societal discrimination) as well as present-day racial subordination.^[113] Unlike Justice Powell, the other four justices would not apply the strict scrutiny test to race-conscious remedies designed to assist minorities. Rather, they favored applying an intermediate level of scrutiny—somewhere between the strict scrutiny test and the rational basis test—mainly to ensure that the remedy in question did not stigmatize, stereo-

type, or especially burden any other minorities. Finally, Justice Brennan's group also upheld the use of the quota under Title VI, on the grounds that "Title VI prohibits only those uses of racial criteria that would violate the fourteenth amendment if employed by a State or its agencies; it does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the fourteenth amendment."^[114]

Bakke is a poor case from which to draw conclusions about the effect of the equal protection clause in general, and the strict scrutiny test in particular, on college admissions. Only Justice Powell invalidated the quota on equal protection grounds. He was also the only justice to use the strict scrutiny test. True, Justice White joined in that part of Justice Powell's opinion relying on the strict scrutiny test. But Justice White also joined Justice Brennan's opinion in full, which caused Justice Powell to view him as an advocate of intermediate scrutiny.^[115] Significantly, the four justices who would not scrutinize benign quotas strictly—Brennan, Marshall, Blackmun, and (possibly) White—have not won the day in subsequent benign quota cases. Since Bakke , a majority of Supreme Court justices, including Justice White, have taken the position that all explicit racial classifications, whether racially exclusive or inclusive, are subject to strict scrutiny and that only national security or the defendant's past or current intentional discrimination—not societal discrimination—will justify the use of such a classification.^[116]

To the extent that the strict scrutiny test effectively prohibits the use of explicit, racially inclusive classifications in college admissions, it could be argued that this test subordinates the civil rights interest of African Americans in higher education. But it can also be argued that Bakke itself, even viewed without reference to the strict scrutiny test, does the same thing. Bakke set in motion a tone of inflexibility, and even racial insensitivity, in the admissions process that has had a direct impact on African American college enrollment in the past decade. Post-Bakke admissions at the University of California at Davis Medical School, the defendant in the case, illustrate this point.

In 1978, this medical school, like other state educational institutions throughout the country, restructured its admissions

process to comply with Bakke . The redrawn affirmative action plan did not, however, yield more or even the same number of new African American students as the pre-Bakke plan did; in fact, it produced far fewer. The medical school at Davis has experienced a "sharp decline in black enrollment since 1978."^[117] The school hired an affirmative action specialist, Margie Beltran-Atencio, who had experience in affirmative action programs at other medical schools, to deal with its enrollment problem. Her assessment of Davis's post-Bakke affirmative action plan is instructive. She asserts that the plan "unfortunately didn't do as much as it could have. . . . It lacked a certain human touch, . . . too much reliance was placed on evaluation of a student's application, rather than [evaluation] of 'a human person.'"^[118]

Bakke, in short, subordinates the civil rights interests of African Americans in at least two ways. First, it invalidates the use of benign quotas, except under extremely limited circumstances. Whether on constitutional, statutory, or any other grounds, invalidating the use of admissions quotas to rectify past societal discrimination or to otherwise promote racial inclusion is sure to have a negative effect on equal educational opportunity for African Americans. Second, Bakke 's rejection of such racial preferences has been read incorrectly by colleges and universities as providing a mandate to assume an inflexible or insensitive attitude toward minority applicants. Bakke allows the subtle use of race in the admissions process, which, of course, is not as effective as a more aggressive race-conscious admissions program. But the programs developed in response to Bakke do not take full advantage of even this small bone. Too often, they focus too much on traditional academic indicators and too little on underlying racial dynamics or the "whole person."^[119] This approach disproportionately denies admission to the few promising African Americans who dare to apply to college.

Bakke 's racial subordination clearly contributes to the college enrollment problem. Without the use of quotas and with colleges relying mainly on traditional admissions criteria, fewer African American students will be admitted to college or graduate school. Bakke and the resultant admissions processes clearly do not counteract the enrollment problem; they simply allow it to exist. As a wiser Supreme Court stated on another occasion and in a slightly

different context, sometimes "affirmative race-conscious relief may be the only means available 'to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have [worked] . . . to the disadvantage of minority citizens.'"^[120]

Summary

A typical member of the African American working class is a semi-skilled or unskilled blue-collar or service worker, or perhaps a clerical worker, and has an annual household income between $ 10,000 and $ 25,000. A working-class family has a lifestyle that is above the subsistence level, although it is likely to use public recreational facilities, to rent its home, and generally to have less control over the events in its life than a middle-class family has.

Like the middle-class, the African American working class shoulders a disproportionate amount of societal hardships in employment, housing, and education, although this chapter has focused primarily on the last two areas. In housing, "smiling discrimination," steering, and other forms of complex racial discrimination, along with segregation, are the major racial disparities facing the African American working class. In primary education, racial disparities consist of second-generation discrimination and resegregation in integrated schools and the lack of cultural diversity and adequate resources in predominantly African American schools. In higher education, low college enrollment is the major problem. These racial disparities within the American working class are linked to a system of racial subordination. Legal doctrines, procedures, and processes designed to implement or to vindicate the racial omission and racial integration tenets subordinate the civil rights interests of the African American working class.

Racial subordination in housing can emerge in several specific ways. The intent test makes the task of proving housing discrimination under the equal protection clause extraordinarily difficult. Literally applied, another judicial doctrine, the strict scrutiny test, forbids the use of racial occupancy controls—a powerful desegregation tool and one of the few means of effectively counteracting complex racial discrimination. The Fair Housing Act

sanctions certain types of housing discrimination and segregation, makes enforcement by private parties unrealistic, provides for only weak enforcement by public officials, and offers little deterrence against simple or complex racial discrimination and segregation.

Specific patterns of racial subordination can likewise be identified in education. In primary education, the tenet of racial integration affects African Americans attending integrated schools, whereas the tenet of racial omission, through the intent test, also affects those attending separate, or racially isolated, schools. The educational needs of African American children are often slighted in court-ordered integration plans—these children may bear the brunt of integrative techniques or may face various forms of resegregation and discrimination in "integrated" schools. The intent test places a near-impossible burden on African Americans, who must first prove segregative intent on the part of state or school officials before a federal court will desegregate schools or provide authority for a racially isolated school to use public funds for educational enrichment programs. In higher education, colleges and graduate schools attempting to comply with theBakke decision, either in fulfillment of a perceived legal obligation or as a matter of institutional policy, have abandoned use of admissions quotas for African Americans or have placed too much weight on traditional academic indicators, failing to take the full measure of the person applying.

These racially subordinating features of the legal system contribute to the housing and educational problems faced by the African American working class. Complex racial discrimination and de facto segregation in housing are prolonged and possibly encouraged by antidiscrimination laws that leave African Americans unequipped to fight the necessary battles. Various forms of second-generation discrimination and resegregation in integrated schools—overrepresentation of African American children in EMR placements and lower-level tracks, biased student discipline, one-way busing and other integration techniques that place a heavier burden on minority students—are engendered by mindless integration, reflecting the low priority placed on the educational needs of African American children. The lack of cultural diversity and adequate educational resources has persisted long

after Brown I in part because proof of segregative intent is an extremely heavy burden to meet.

Finally, African American college enrollment is sure to stagnate at post-Bakke low levels when colleges and universities jettison the most effective means of admitting promising African American students—racial quotas—or when the admissions process otherwise fails to take the full measure of the person applying. Given the difficulty of proving discriminatory intent and the unlikely possibility that a rejected African American high school student could sue a college for discrimination, admissions quotas for African Americans may be the only effective way to counteract residual discrimination and racism in the admissions process.

Chapter Four—
The African American Poverty Class

Defining Characteristics

We will use the terms African American poverty class and poor African Americans to refer to those individuals and families who have no legitimate source of income, who rely in whole or in part on meager amounts of public assistance, or who earn wages below the poverty line, which has been set at approximately $11,000 annually for a family of four during the late 1980s.^[1] If we use the income level of $10,000 and below as the measuring rod for class size, we find that approximately one-third of all African Americans belong to this socioeconomic class. (See the table and the chart on pp. 37 and 38.) Again, however, I am less concerned with an income bracket itself than with the socioeconomic characteristics, conditions, and problems a household normally buys into at that particular income level.

This statistical profile of poor African American households may help to bring the picture into focus:

• Fourteen percent of these households are made up of family units headed by a husband and a wife. Roughly equal groups of the men are semi-skilled or unskilled blue-collar or service workers (assembly-line workers, laborers, food handlers, domestic workers, for example), retired, not in the labor force (not working and not actively looking for work), or unemployed (but actively looking for work). Roughly equal groups of the women are semi-skilled or unskilled blue-collar or service workers, retired, primarily homemakers, or unemployed.

• Forty-one percent of the households are families headed by women. Among these heads of household, 58 percent are not in the labor force, 8 percent are unemployed, 25 percent are semi-skilled or unskilled blue-collar or service workers, and 8 percent are clerical or sales workers (secretaries, sales clerks, telephone operators, postal workers).

• Three percent of the households are families headed by men in which the head of household is not in the labor force.

• Twenty-one percent of the households consist of unmarried women with no dependents. Approximately 33 percent of these women are not in the labor force, 17 percent are unemployed, 17 percent are semi-skilled or unskilled blue-collar or service workers, and 33 percent are retired.

• Twenty-one percent of the households consist of single men, of whom approximately 33 percent are not in the labor force, 17 percent are unemployed, 33 percent are semi-skilled or unskilled blue-collar or service workers, and 17 percent are retired.^[2]

These statistics clearly indicate that poor African Americans live at the low end of the American dream. But they can only hint at the life of a discernible subculture, or subclass: the African American underclass. This subclass, a relatively new segment of society, adds a special dimension to poverty in America.

The term underclass was not part of civil rights discourse during the 1960s. Journalist Ken Auletta popularized the term in a 1982 book entitled The Underclass .^[3] Auletta wrote about the hard-core unemployed, concentrating on what he perceived as values and behaviors quite different from those of mainstream society. A CBS Reports documentary by Bill Moyers, "The Vanishing Black Family: Crisis in Black America," is perhaps most responsible for making the term underclass a household word.^[4] This 1986 television documentary dramatized for the entire nation some of the attitudes, values, and behavior patterns of African American teenagers, both male and female, from broken families.

Today, the term underclass has come to mean more than the hard-core unemployed or individuals from broken families. There is, however, no generally accepted definition of the underclass.

Rather, there are several competing definitions, most of which were debated at a conference convened by the Joint Center for Political Studies on March 5, 1987, in Washington D.C. Without revisiting that debate, we can nevertheless summarize three alternative definitions of the underclass that were presented at the conference: the long-term poor (individuals living below the poverty line for eight of the past ten years); the inner-city poor (which necessarily excludes the rural poor); and individuals residing in areas in which a high percentage of the residents are unemployed, are dependent on welfare, have dropped out of high school, or live in female-headed families. This last description, slightly modified, emerged as what might be called a consensus definition: "poor people who live in a neighborhood or census tract with high rates of unemployment, crime, and welfare dependency."^[5]

Estimates of the size of the underclass range from a high of 60 percent of the poor to a low of 16 percent.^[6] These figures, of course, depend on the definitions employed. Also, because such measurements rely chiefly on government-conducted surveys, they can provide at best only rough approximations. Government census takers are often reluctant to enter minority neighborhoods, and many minorities are reluctant to talk with government officials who ask personal questions; "the result is a substantial (20 percent, perhaps) undercounting of the nonwhite population."^[7]

Amid the uncertainty surrounding our understanding of the underclass, one thing seems clear: most scholars believe that the existence of the African American underclass in the inner city—where individuals are trapped in an intergenerational cycle of dysfunction and self-destruction—presents "a special agony for America" and that this agony is a particular phenomenon of the post—Jim Crow, post-1960s period. Indeed, some scholars would limit the definition of the underclass to include only the African American or Hispanic underclass as it has developed during this period. Others would apply the term only to the inner-city African American underclass.^[8]

Two additional observations should be noted. First, inner-city areas, in which most underclass African Americans reside, "are not only ecologically and economically very different from areas

in which poor urban whites tend to reside, they are also very different from their own ecological and economic makeup of several decades ago"^[9] —a difference that will be examined in the pages to follow.

Second, although the size of the American underclass varies with the definition chosen to describe it, most scholars who have studied the matter agree that the African American underclass represents a greater percentage of the African American poverty class than the white underclass does of the white poverty class.^[10] It is important to understand that the underclass—particularly its urban segment—is characterized by socioeconomic conditions that are not manifested evenly throughout the American poverty class. Instead, these conditions are experienced disproportionately by poor African Americans and have thus become part of today's version of the American race problem.

The Subordination Question

Intra-Class Racial Disparity

What constitutes intra-class racial disparity within the American poverty class? What unique or distinguishing features are inherent in the lives of underclass African Americans—the longterm poor and unemployed isolated in ghettoes? Welfare dependency, broken families, unemployment, unusual vulnerability to the "low-wage explosion" (the poverty-level wages paid by many newly created jobs),^[11] crime, drugs, gangs, or malnutrition? The answer, I believe, is none of the above. Instead, these conditions are evidence of a deeper, more fundamental phenomenon.

When one pulls this evidence together, it becomes clear that it is the force underlying these conditions—a proclivity toward a pattern of dysfunction and self-destruction, manifested in particular behaviors, value systems, and attitudes —that fundamentally distinguishes underclass African American communities from other poor communities in America. This current is more organic and widespread within this segment of African American society than the high rate of welfare dependency, single-parent families, joblessness, or other identifying characteristics. It also helps to explain the profusion of often confusing socioeconomic conditions, including the damaging effects of the low-wage explosion—

the lives of underclass African Americans are moving in a direction that leaves them totally unprepared for skilled employment.

The dysfunctional and self-destructive lifestyle of the African American underclass is also sustained in part by racial sensibility. which itself is a legacy of earlier systems of racial subordination. Racial sensibility is a most insidious "cultural disease." Its symptoms include an inability to manage mixed or negative feelings regarding one's racial identity—low self-esteem, self-hate, anger, and defiance; an inability to draw strength, pride, determination, or energy from African American culture; and a general inability to successfully adapt to the white-dominated world. The problems African Americans often experience with racial sensibility may partly explain why white ethnic groups, Southeast Asian and other recent immigrants, and even black West Indians have made greater economic and social progress than African Americans as a whole.^[12]

Most important, my characterization of the African American underclass is not intended to subscribe to the Banfield-Lewis "culture of poverty" school of thought.^[13] I readily acknowledge that most members of this underclass have imbibed behaviors, values, and attitudes that differ from those of the mainstream and that are dysfunctional in the context of a service-oriented, highly complex society. I also argue that the underclass shares in the responsibility for solving its own problems.

I do not, however, concede that the African American underclass is in large part to blame for its economic privation or its wrongheadedness. Many of the problems of the underclass (as distinguished from the problems of the working poor or the short-term welfare poor) are related to structural changes in the economy, such as the loss of manufacturing jobs in the cities and the increase in service jobs,^[14] as well as to our civil rights policies. Thus, although they may sometimes be couched in "culture of poverty" language, my views about the underclass really tend toward those of William Ryan, who criticized Banfield for blaming the victim and ignoring the ways in which society, through class ordering, causes poverty.^[15] It is equally wrong today to blame the victim and ignore the extent to which external forces—history, civil rights policy, the economy, and even the very fact of living outside the mainstream—can affect a group's culture. Un-

derclass status need not be permanent. It is neither culturally determined nor a matter of fate. It can be changed; underclass African Americans want it changed; and it must be changed.

Young People and the Urban Underclass

A close examination of the lives of African American teenagers in the urban underclass serves to bring many of the negative behavior patterns, attitudes, and value systems into sharp focus. Together, female and male teenagers are involved in most of the serious problems within the underclass: teenage pregnancy, dropping out of school, and a large share of welfare dependency, crime, drugs, malnourished babies, and single-parent households.^[16]

The pattern of dysfunction and self-destruction often begins with teenage pregnancy. Clearly, the lack of sex education, including access to and knowledge about the proper use of contraceptives, is a factor in some teenage pregnancies.^[17] But in many cases adolescent girls get pregnant in spite of sex education, formal or informal. Why? One reason is the desire for a sense of identity and achievement. When educational, occupational, and other avenues to status and success are closed off, motherhood may appear to be a rational choice. (Conversely, a middle-class girl who has college and career in sight is likely to be more motivated to use contraception to avoid pregnancy.) Teenagers also bear children in an attempt to compensate for a lack of nurturing and emotional support from family, school, and community. The desire to love and to be loved is the reason that comes through most strongly in numerous responses to the question, "Why did you get pregnant?"

The response of an African American teenager from Atlanta is typical: "I didn't think my mother noticed me." So too is the statement of another teenager from Newark: "Children will smile when no one else will. . . .They will always be there."^[18] Janet Schultz, a nurse-practitioner in Chester, Pennsylvania, who has treated scores of pregnant teenagers, sums up her experience:

Children get pregnant—teenagers get pregnant—because they want to get pregnant; they want to have babies. It's not for lack of birth control. Every child knows where to get birth control. They could even tell us where to get birth control. It's available; it's not expensive—in fact, a teenage girl who would like to get the birth control pill does not

need . . .permission from her parent to be treated at a medical facility for gynecologic care in order to get birth control pills. She's what we call an "emancipated minor" when it comes to sexual matters, and she can sign for her own care and therefore get birth control pills. The girls want to have babies.^[19]

Children bearing children represents only the first of many self-defeating acts to come. Teenage mothers ignite a series of interrelated, intergenerational problems. The first, which begins with the pregnancy itself, is failing to complete high school. In New York City, for example, pregnancy is the single most common reason teenage girls drop out of school.^[20] The pregnancy of a very young girl can also have an adverse effect on the baby's health and consequently on the social cost of infant care. Pregnant teenagers are "far less likely than other expectant mothers to receive prenatal care, thus increasing the risk of bearing low-birth-weight babies requiring extensive medical care at public expense."^[21] Babies with a low birth weight can experience both physical and mental developmental problems, called the "failure to thrive" syndrome.^[22]

Unlike their counterparts of thirty or forty years ago, teenagers who become pregnant today are less likely to marry right away and less likely to give up their babies for adoption. Thus, many young (often extremely young) girls enter the world of single parenthood. Having dropped out of high school and lacking her own means of transportation, access to child care services, or marketable skills to obtain a job, the teenage mother is usually compelled to go on welfare. In New York City, 70 percent of new teenage mothers are likely to be receiving public assistance within eighteen months.^[23]

Going on welfare does not solve the problem of malnourished children, another condition within the underclass that is especially acute among the children of teenage parents. One official explained: "We have multiple kids who are malnourished and . . . some of them are malnourished because the families don't have enough money for food. Sometimes it's because they don't budget money well, but they don't have a whole lot to budget"^[24] In addition, African Americans in the underclass, like most other poor people, are not nutritional experts, nor do they

have access to the best food bargains.^[25] And many of these individuals do not have "the kind of sophistication or education that allows them to work very well with . . .[local nutritional agencies]."^[26]

African American teenagers may be ill prepared to care for their children's nutritional and other physical needs, but they are equally ill prepared to teach their children a very important psychosocial survival skill: how to deal with racial sensibility. Having to cope with racial sensibility is a central distinction between poor African Americans and poor whites; this racial phenomenon simply does not figure into the life chances of white people.

The importance of teaching African American children how to handle the psychological problems of being a racial minority in a racist society is made clear by two leading African American psychiatrists, James P. Comer of Yale University and Alvin Poussaint of Harvard University (who is also an advisor for television's "The Cosby Show"). In their book Black Child Care, Comer and Poussaint maintain that, although good child-rearing principles "are fundamentally the same for all," African American parents "will occasionally need to act in special ways." Because our society "so profoundly threatens" the self-esteem of African American children, Comer and Poussaint argue that parenting requires special efforts to provide for the child's psychological wellbeing. The African American child, who is "still made to feel inferior to whites," must be "trained to cope with white oppression." Parents must, among other things, pass on "to a growing child both the strengths of the old culture and the rules and techniques essential for successful adaptation in the modern world." These techniques include the art of being "practical as well as cunning," learning "how to win some sort of acceptance from belligerent whites," and even acquiring the habit of containing one's "aggression around whites while freely expressing it among blacks."^[27]

It is very unlikely that teenage parents, who are forced into a kind of premature adulthood, can themselves master or effectively communicate these sophisticated rules and techniques to their children, especially given the complexity of post-1960s

racial dynamics. Even older and wealthier African Americans find this parental burden to be particularly difficult in today's racial climate.^[28]

Thus, as an African American infant suffering from "failure to thrive" syndrome grows into a malnourished child, on the way to becoming a racially unschooled teenager, the future looks bleak. The possibility of educational achievement seems remote, given the problems with intellectual, cultural, and emotional growth that may occur over the years and the problems such a child may encounter in the public school system (discussed in Chapter 3). Many teenagers drop out of school simply to escape the frustrations and humiliations that come with educational failure, seemingly unaware or unafraid of what dropping out will do to their chances of finding a good job. Other than a strong sense that money is a commodity one should not do without, there may be little guidance or nurturing from the home. Indeed, home life can become quite unpleasant, with tensions mounting as the family struggles through days of poverty and despair. Virtually on their own at an early age, teenagers look for ways to survive and to embellish life in an environment of scarcity. Females often turn to pregnancy and motherhood as a way of arriving at a productive life. Males frequently look elsewhere—the streets.

Coping in the streets is a cruel way for teenagers to try to develop personal growth and fulfillment. They succeed only in becoming children of the streets, playing host to a multitude of social and cultural evils: crime, drugs, vandalism, street hustle, resentment and bitterness against society, and teenage pregnancy and all its attendant problems. Claude Brown, whose highly acclaimed autobiography Manchild in the Promised Land made America aware of the problems of an African American youngster growing up on the streets of Harlem in the 1940S and 1950,^[29] describes the environment and some of the motivations and coping techniques of today's prematurely adult male:

Today's manchild is a teen-ager between the ages of 13 and 18, probably a second-generation ghetto dweller living with his unskilled, laboring mother and three or four sisters and brothers, maybe one or two cousins, all sharing a tiny three-, four- or five-room apartment in a dilapidated tenement of low-income, city-owned housing developments, commonly called "the projects." . . .

The motivations, dreams and aspirations of today's young men are essentially the same as those of the teen-agers of their parents' generation—with a few dramatic differences. They are persistently violent. They appear driven by, or almost obsessed with, a desperate need for pocket money that they cannot possibly obtain legally. . . .

Like his progenitor, [today's manchild] seeks the answers to life's "unknowable whys" through informal mysticism and mind-altering media collectively called getting "high." . . .

Yet, the unimaginably difficult struggle to arrive at a productive manhood in urban America is more devastatingly monstrous than ever before. All street kids are at least semi-abandoned, out on those mean streets for the major portion of the day and night. They are at the mercy of a coldblooded and ruthless environment; survival is a matter of fortuity, instinct, ingenuity and unavoidable conditioning. Consequently, the manchild who survives is usually more cunning, more devious and often more vicious than his middle-class counterpart. These traits are the essential contents of his survival kit.^[30]

The African American underclass is not the only group in our society that suffers from a pattern of dysfunction and selfdestruction. Male teenagers between the ages of fifteen and eighteen, regardless of race or socioeconomic level, have the highest incidence of involvement in crime.^[31] And, of course, the white underclass, with all its similar problems of poverty, alienation, broken homes, welfare dependency, and criminal behavior, is also prone to self-defeating mores.^[32] None of these groups, however, behave in response to attitudes and value systems quite like those found in the African American inner-city ghetto.

The ghetto is a constant reminder to all African Americans of earlier subordinating systems. To members of the underclass, it is also a symbol of society's indifference and frequent hostility toward them in particular. Skirmishes with the police—angry white men in screaming cars—pervasive economic privation, and the many failed attempts to "make it" in a perplexing white world (in school, on the job, and so on) all help to create a deeply ingrained aversion, especially in African American males, to the values of the larger, alien white world. Life in the ghetto can engender a very real sense that whites have purposefully limited opportunities for African Americans, that society has closed off

every avenue of stardom, except "stardom in crime." John Edgar Wildeman captures many of these complex attitudes and values in his book Brothers and Keepers :

You remember what we were saying about young black men in the street-world life. And trying to understand why the "square world" becomes completely unattractive to them. It has to do with the fact that their world is the GHETTO and in that world all the glamour, all the praise and attention is given to the slick guy, the gangster especially, the ones that get over in the "life." And it's because we can't help but feel some satisfaction seeing a brother, a black man, get over on these people, on their system without playing by their rules. No matter how much we have incorporated these rules as our own, we know that they were forced on us by people who did not have our best interest at heart. . . .

In the real world, the world left for me, it was unacceptable to be "good," it was square to be smart in school, it was jive to show respect to people outside the street world, it was cool to be cold to your woman and the people that loved you. The things we liked we called "bad." "Man, that was a bad girl." The world of the angry black kid . . .was a world in which to be in was to be out—out of touch with the square world and all of its rules on what's right and wrong. The thing was to make sure it's contrary to what society says or is. . . .

. . .The world's a stone bitch. Nothing true if that's not true. The man had you coming and going. He owned everything worth owning and all you'd ever get was what he didn't want anymore, what he'd chewed and spit out and left in the gutter for niggers to fight over. Garth had pointed to the street and said. If we ever make it, it got to come from there, from the curb.^[33]

These attitudes and values give content to the pattern of dysfunction and self-destruction within the African American underclass and distinguish this segment of society from other groups that engage in similar behavior. However, although these negative attitudes and values are part of the fabric of this group's lifestyle, it would be wrong to conclude that members of the underclass are solely to blame. Both structural changes in the economy and racial subordination have played significant roles in the creation and enhancement of this pattern. The issue of racial subordination is considered next.

Racial Subordination

Slavery and Jim Crow

It is not the case that a sizable segment of African American society joined the ranks of the underclass on its own volition during the decades since the 1960s. Many of these individuals had no choice; they emerged from the Jim Crow system heavily encumbered by poverty and despair and thus were already on the road to underclass status. Given the duration and intensity of slavery and Jim Crow, it would not have been difficult to anticipate in the late 1960s that these historical subordinating systems would have a residual effect on African Americans and society as a whole for many years to come.^[34]

Indeed, in its 1968 report on the causes of America's race riots, the National Advisory Commission on Civil Disorders, better known as the Kerner Commission, cited some of the lingering effects of slavery and Jim Crow: acute unemployment, high underemployment, shabby housing, second-rate education, poor municipal services, inadequate welfare assistance, and, of course, racism. Significantly, the commission said that "segregation and poverty converge on the young to destroy opportunity and enforce failure. Crime, drug addiction, dependency on welfare, and bitterness and resentment against society in general and white society in particular are the result."^[35]

These findings are dramatically illustrated by statistics from the late 1960s and early 1970s. African Americans came out of the Jim Crow era with an unemployment rate roughly twice as high as the rate for whites; a poverty rate for individuals and intact families more than three times that of whites; and income levels for males and intact families that were only 58.1 percent and 61.4 percent, respectively, of the income levels recorded for their white counterparts.^[36] The percentage of African American men and women concentrated in the lowest-paying, least-skilled jobs (primarily private domestic service and farming) was nearly three times as great as the percentage of white men and women holding such jobs.^[37] African American men earned only 57.5 percent as much as comparably experienced white men; when both experience and education were taken into account, African American men earned between 60 and 70 percent of the wages paid to white males of similar backgrounds.^[38]

African Americans were almost twice as likely as whites to live in rental housing, and their homes were less likely to contain all essential plumbing facilities. African Americans endured more than twice as much overcrowding in urban housing and more than three times as much in rural housing as did whites, regardless of whether the housing was owner-occupied or rented. In education, the percentage of high school graduates among whites was more than double and the percentage of college graduates was almost triple the percentages for African Americans.^[39]

The continuing effects of earlier racial subordination cannot be dismissed by pointing to the fact that some African Americans, even some from the poverty class, have been able to excel in spite of these conditions. Simply put, not all African Americans are the same. "Sure," observes Carl Rowan, an African American who is a syndicated newspaper columnist, "a common bond of genes, of suffering, of grievances and yearnings does tie together all blacks in this country."^[40] But some are stronger or luckier than others. "Blacks have always distinguished between the person who is in the ghetto and the one with the ghetto in himself. The former is a striver, the latter a defeatist."^[41] Rowan notes that "when a thousand are bound in chains, only a few Houdinis will emerge. Those who have done so simply turned out to be stronger than their shackles were."^[42]

Nor can the current effects of past subordinating systems be discounted by pointing to other ethnic groups, who can also lay claim to a legacy of suffering but who have surmounted barriers to gain entrance into mainstream American society. The African American experience in the United States is wholly different from that of other ethnic groups in this country, including the recent Asian immigrants who have done so well in record time. No other ethnic group was brought here against its wishes and then enslaved and humiliated so thoroughly by society and government.

Too many Americans seem to have forgotten—or perhaps have never read—the Kerner Commission's findings on this subject. In addressing the question of why so many African Americans, in contrast to European immigrants, have been unable to escape from the ghetto and poverty, the commission cited, among other things, certain racial and cultural factors:

The Disability of Race . The structure of discrimination has stringently narrowed opportunities for the Negro and restricted his prospects. European immigrants suffered from discrimination, but never so pervasively. . . .

Cultural Factors . Coming from societies with a low standard of living and at a time when job aspirations were low, the immigrants sensed little deprivation in being forced to take the less desirable and poorer paying jobs. Their large and cohesive families contributed to total income. Their vision of the future—one that led to a life outside of the ghetto—provided the incentive necessary to endure the present.

Although Negro men worked as hard as the immigrants, they were unable to support their families. The entrepreneurial opportunities had vanished. As a result of slavery and long periods of unemployment, the Negro family structure had become matriarchal; the males played a secondary and marginal family role—one which offered little compensation for their hard and unrewarding labor. Above all, segregation denied Negroes access to good jobs and the opportunity to leave the ghetto. For them, the future seemed to lead only to a dead end.

Today, whites tend to exaggerate how well and quickly they escaped from poverty. The fact is that immigrants who came from rural backgrounds, as many Negroes do, are only now, after three generations, finally beginning to move into the middle class.

By contrast, Negroes began concentrating in the city less than two generations ago, and under much less favorable conditions.^[43]

Myriad other consequences flow from the unique historical experiences of African Americans. In addition to the socioeconomic problems discussed above, there is also the lack of a legacy of opportunities from which today's African Americans can benefit. Government-imposed racial exclusion permitted earlier generations of African Americans to amass very few opportunities for themselves—in education, business, the professions, and so on—leaving even less to bequeath to future generations.

Psychosocial problems are also among the consequences of this historical subordination. What has been dubbed "sorriness," for example, might be seen as a "cultural disease" afflicting some in the African American community. A sort of arrested adolescence, it helps to explain some of the dysfunctional behavior of underclass African American men, such as the intra-racial violence that sometimes results from the failure to vent anger and frustration in a mature manner.^[44] "Sorriness" is similar to the "Peter Pan

syndrome" in that both terms describe young men who refuse to grow up or accept responsibility. There is, however, an important difference between the two terms: one who suffers from "sorriness" faces the prospects of long-term poverty, prison, physical injury, or even death, especially without family resources to cushion the blows or pick up the pieces. James Baldwin describes this cultural disease in his book The Evidence of Things Not Seen :

It is a disease that attacks Black males. It is transmitted by Mama, whose instinct—and it is not hard to see why—is to protect the Black male from the devastation that threatens him the moment he declares himself a man. All of our mothers, and all of our women, live with this small, doom-laden bell in the skull, silent, waiting, or resounding, every hour of every day. Mama lays this burden on Sister, from whom she expects (or indicates she expects) far more than she expects from Brother; but one of the results of this all too comprehensible dynamic is that Brother may never grow up—in which case, the community has become an accomplice to the Republic.^[45]

Racial sensibility, discussed earlier in this chapter, must also be seen as a psychological consequence of African Americans' history. Failure to deal with this "inheritable" problem can cause motivational disabilities—especially in young men, who, for example, may be "less willing to compete aggressively for the opportunities that are open or less willing to submit to industrial discipline." Moreover, parents who themselves have not been able to handle racial sensibility may affect the entire family structure—their mishandling of their own problems may have an impact on "a child's aspirations and on the guidance available."^[46]

Given the enormous disadvantages African Americans carried into post-1960s America, it should surprise no one that such serious conditions remain with us today. What may surprise some, however, is the role that formal equal opportunity plays in sustaining the residue of prior racial subordination and in creating new forms of subordination.

Formal Equal Opportunity

If slavery and Jim Crow have sown the seeds of the African American underclass, formal equal opportunity has done its share to nurture their growth. Formal equal opportunity—through its policy of racial integration, in

particular—has contributed to the formation of the underclass, and continues to do so, by failing to give any priority at all to the concerns of those in the African American poverty class who stand to benefit from racial separation. Racial integration is intrinsically at odds with racial separation; they are wholly incompatible. The push toward integration has been dominant in African American inner-city communities since the 1960s, and it has helped to promote the development of dysfunctional and self-destructive behaviors, attitudes, and values among those who now populate the underclass.

Despite this assertion, there is no denying that most poor African Americans have been helped by racial integration in the past several decades. In 1964, for example, 49.6 percent of the African American population was classified as part of the poverty class; this figure had declined to 35.7 percent by 1983. Racial integration was not the sole reason for this decline, of course; during the same period the percentage of the white population in the poverty class also decreased (from 14.9 percent to 12.1 percent), and the size of the poverty class overall, as a percentage of the total population, decreased from 19 percent to 15.2 percent. But the size of the African American poverty class decreased at a greater rate, suggesting that a significant part of that decline resulted from an expansion of opportunities brought about at least in part by racial integration.^[47] There is also little doubt that most poor African Americans, particularly the working poor, actually desire residential integration and integrated public schools, although support for the latter has declined somewhat since the 1960s.^[48]

But there is also reason to believe that at least one subclass of poor African Americans, the underclass, is better served by a policy of racial separation. We can understand this by looking at how a policy of integration subordinates the most pressing civil rights interest of the African American underclass and by considering how racial separation can be a legitimate civil rights policy alternative.

In discussing the subordination question, we must first identify a relevant civil rights interest. The subordination question presupposes the presence of such an interest—that is, a claim against the government for equal access to an extant opportunity.

Does the African American underclass have a civil rights interest at stake? Indeed it does.

The nature of this civil rights interest, heard in the many voices raised earlier in this chapter, finds expression in George Bernard Shaw's astute observation about poverty: "Poverty does not produce unhappiness; it produces degradation"—degradation, humiliation, the absence of human dignity or respect. These issues reduce themselves to a claim for an equal opportunity to achieve a decent standard of living, which is a claim more immediate, more basic than any of the other equality claims discussed in previous chapters (equal employment, housing, and educational opportunities).

There is no doubt that the civil rights interest of the African American underclass—a claim for an equal opportunity to achieve a decent standard of living—is legitimate. This opportunity is made available to Americans in general. It comes with membership in American society, a privilege of citizenship made available even to (or perhaps especially to) the poor. The land of opportunity promises the poor a chance to reinvent themselves, for it would be unthinkable (un-American) to banish anyone to eternal poverty. And, indeed, most poor households do escape poverty. The American poverty class is not static; it is fluid. Its composition changes continually, with most households moving out of the ranks of the poor within one or two years, having slipped into poverty through the loss of a job, the death or disability of a spouse, or some other catastrophic event.^[49] Clearly, the claim for an equal opportunity to attain a reasonable standard of living is even more than a legitimate claim in American society; it strikes at the essence of the American experience.

It is also clear that the chance to escape from poverty may not be as available to poor African Americans as it is to poor whites. With long-term and even intergenerational poverty gripping a much larger percentage of poor African Americans, it is at least arguable that these individuals (especially members of the underclass) do not enjoy an opportunity to better their living standards that is roughly equal to the opportunity enjoyed by poor whites. And I would argue that one important reason for this intra-class racial disparity involves the application of our fundamental civil

rights policy since the end of Jim Crow—in other words, it involves racial, rather than class, subordination.

The tenet of racial integration subordinates the civil rights interest of the underclass by depleting African American communities of vital resources—resources that are necessary for sustaining a vibrant culture and stable families. Racial integration, in other words, has been something of a boon for those African Americans least handicapped by the emotional and physical hardships of slavery and Jim Crow. It has given these individuals, mainly from the middle class and the working class, the opportunity to move out of previously segregated communities. But the departure of so many stable families and talented leaders from African American communities has resulted in a concomitant loss of valuable community resources. There has been not only a steady depletion of economic resources, such as money that could be recycled within the community, but also—and more important—a drain of individuals capable of supplying wisdom and guidance to young African Americans in the ghetto.

William Julius Wilson also notes the negative effect that the exodus of stable families and individuals has had on today's African American ghettoes. But he tends to discount the connection to civil rights policy, because he sees less discrimination today than, say, in the 1940s.^[50] The problem with this analysis is that it fails to look closely enough at the transformation of previously segregated communities. Clearly, the exodus on which both Wilson and I focus was made possible by the radical change in our fundamental civil rights policy, from separate-but-equal to formal equal opportunity. Racial integration provided a first-time opportunity for talented African American individuals and stable families to move out of racially isolated communities.

It is impossible to overstate the importance of the middle class to African American communities. Middle-class African Americans were leaders and role models in segregated communities. By words and, more important, by lifestyle, they helped to shape and direct the attitudes, behavior, and value systems of others living there. They interjected crucial "mainstreaming" (American middle-class) elements into the community, not occasionally but continuously. As one observer explains: "A generation ago, racist law and custom confined both [the strivers and the defeatists] to

the same neighborhoods. Strivers set the tone—in commerce, religion, social life, politics. They were role models. They provided the leavening that made Harlem, instead of the archetypal slum, into a varied, textured community that was black America's cultural capital."^[51]

Middle-class African Americans were perhaps most important as role models for the children of poverty. Children become only what they can imagine themselves to be. And their visions are clearly affected by what they see in their environment. If all the adults around them are chronically unemployed or work in poorly paid jobs with little security, children may simply accept this as their own fate. But if African American children see African American adults going to a job every morning and bringing home a paycheck to pay the bills and support a reasonably comfortable lifestyle, and if they see African American adults become successful professionals and leaders, then their understanding of their own potential is expanded.

In their book Black Child Care, Comer and Poussaint make this essential point by referring to "significant others." This concept is another way of stressing the importance of community support in the emotional and psychological development of children, especially in teaching African American children how to deal with racial sensibility. Even children raised in the poorest of homes, who may have grown up with strong feelings that their parents were unable to provide for their economic and social well-being, can learn how to successfully adapt to today's world as an African American, developing a work ethic and an "attitude of black pride, self-confidence, and assertiveness" from others in their communities.^[52]

Wilson makes a similar observation. Framing it in terms of the "social isolation" of the underclass, he notes that "the residents of highly concentrated poverty neighborhoods in the inner city today not only infrequently interact with those individuals or families who have had a stable work history and have had little involvement with welfare or public assistance, they also seldom have had sustained contact with friends or relatives in the more stable areas of the city or in the suburbs." One result of such isolation is that even suburban whites often learn of job vacancies in the inner city before underclass African Americans do.^[53]

During the Jim Crow era, these significant others (stable families and striving individuals) were in abundant supply in African American communities. Housing segregation, to the unintended benefit of scores of African American children, trapped these human resources within the communities. African American men and women of achievement—lawyers, doctors, dentists, businesspersons, schoolteachers, and other skilled workers—were admired and imitated in segregated communities. They spoke and acted with considerable authority on matters of survival and success in "the white world." They were symbols of achievement and offered young African Americans visible alternatives to a life of illiteracy, crime, drug addiction, welfare dependency, and abject poverty. Clearly, but for racial integration, middle-class culture would still be a significant force in African American communities today—there simply would be nowhere else for the African American middle class to live. Comer strikes a similar note: "After World War II, . . . successful blacks began moving out of the inner-city, taking their money, leadership and role models, leaving the poor isolated and alienated. Whites began moving to the suburbs, taking quality education and jobs with them. These trends left certain parents—black and white—less able to transmit desirable values to their children."^[54]

The argument that racial integration has to some extent been harmful to underclass African Americans suggests not only that racial separation can be helpful to this segment of African American society but also that it is a legitimate (though, for the most part, not legally enforceable) civil rights policy in the United States today. The legitimacy of racial separation can be seen in two ways. First, some argue that emphasizing racial mixing (whether it is emphasized by African Americans, whites, government, or social institutions) can cause African Americans to be preoccupied with gaining acceptance from whites or entrance to white institutions at the expense of building alternative African American institutions, forging a strong racial identity, and creating support mechanisms for African American society as a whole as well as for the underclass. This argument seems theoretically correct in that any group can benefit from paying undivided attention to itself; one cannot serve two masters at the same time. The extent of the empirical support for this argument is unclear,

however. African American institutions in general have not been as strong as white institutions, although it is true that they have not enjoyed an equal level of financial support from society.^[55] Many African Americans believe their institutions can perform at least as well as white institutions, given the same level of financial resources.

Second, racial separation by white ethnic groups has a long and accepted history in American society. Although society has never looked askance at Jews, Italians, Poles, and other ethnic groups who maintained their own enclaves and engaged in various forms of separatism for self-improvement, it has looked with suspicion and even disdain on African American collectivism. During the "Black Power" stage of the civil rights movement, white society placed tremendous pressure on talented young African Americans, many of whom are now members of the middle class, to avoid expressions of separatism or nationalism. Of course, many young African Americans were self-motivated to pursue integration over separation. But white liberals in particular, many of whom were close allies of and sometimes mentors to young African Americans, argued that structures such as the all-black community center, college dormitory, or dining table were radical, reverse racism, or a subversion of the civil rights movement. And today that line of argument continues in Allan Bloom's best-seller, The Closing of the American Mind .^[56] The argument against separatism, however, was and continues to be based on an erroneous understanding of the civil rights movement. Most African Americans saw the civil rights movement, in essence, not as a struggle to "capture a white person" (i.e., to integrate), but as a struggle to free themselves from government-sponsored racial oppression. It was about freedom—hence, the "freedom songs," "freedom marches," and "freedom trains." Having won desegregation, which most would not give up, African American individuals and classes must now decide whether separation or integration is best for them.

The answer to that dilemma seems clear: African Americans, regardless of class, must pursue integration over separation as a general matter of strategy. But one must keep in mind the distinction between diagnosis and prescription. In diagnosing the American race problem, it cannot be denied that racial integra-

tion, whatever its effects on the middle class and the working class, has had seriously negative consequences for socioeconomic conditions within poor African American communities. In prescribing solutions for the American race problem, however it is equally clear that de facto resegregation or a widespread practice of racial separation, however legitimate a policy it may be, would be a poisonous brew; it would have dangerous ramifications on society as a whole, and it would prevent African Americans and whites from learning to respect and live with one another. Not all legitimate or widely supported public policies (community expectations) in a democracy are deserving of further extension by individuals, groups, or government.

My prescription for the American race problem attempts to avoid the extreme of resegregation or rampant separatism by calling for a limited expression of separatism—African American self-help. Unlike some who would use racial separatism for racial exclusion, I would advocate using it for self-improvement and racial inclusion. This will be the focus of the next part of the book.

Summary

African Americans with annual incomes below the poverty line are typically single or are part of single-parent households. Most are unemployed, semi-skilled or unskilled blue-collar or service workers, or retired. The long-term poor isolated in rural or innercity ghettoes and unemployed for extended periods of time can be seen as an underclass, a subgroup of the poverty class. These individuals exhibit behavior patterns, sets of attitudes, and value systems that offer few springboards from which to launch a successful life. Underclass African Americans live lives of despair, lives that move toward social and economic dysfunction and self-destruction. It is an existence far removed from mainstream society.

The role of the American political and economic system in creating such social and cultural pathology cannot be denied. Ending only in the 1960s, government-sanctioned racism left African Americans with tremendous social and economic disadvantage. Since the 1960s, many more poor African Americans than poor whites have fallen deeper into poverty and have become even

more removed from mainstream society, as a result of structural changes in the economy, the sheer weight of the lingering effects of slavery and Jim Crow, and the implementation of our basic civil rights policy.

This policy, formal equal opportunity, contains a racially subordinating feature that has contributed to the rise of the African American underclass. Racial integration, one of the tenets of formal equal opportunity, subordinates the primary civil rights interest of underclass African Americans—an equal opportunity to achieve a decent standard of living—by draining valuable resources from previously segregated African American communities. Those who are left behind, especially the children, are deprived of stable families and individuals who act as community leaders and role models. Without these human resources, there are few left within the neighborhood to continuously expose children to the behaviors, attitudes, and values of mainstream society; to regularly help them deal with racial sensibility, "sorriness," and other problems stemming from historical and modern racism; to act as a force opposing dysfunctional and self-destructive behaviors; and to teach them survival skills that could help to guide them out of a life of poverty and despair. Formal equal opportunity, in short, gives no priority to the special needs of the African American underclass.