Monthly Archives: February 1977

1977.02: Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics (UCLA Law Review)

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RACISM, SEXISM, AND PREFERENTIAL

TREATMENT: AN APPROACH

TO THE TOPICS

RICHARD A. WASSERSTROM

Reprinted from

UCLA LAW REVIEW

Volume 24, February 1977, Number 3

© 1977 by the Regents of the University of California

RACISM, SEXISM, AND PREFERENTIAL

TREATMENT: AN APPROACH

TO THE TOPICS

Richard A. W asserstrom *

INTRODUCTION

Racism and sexism are two central issues that engage the attention

of many persons living within the United States today.

But while there is relatively little disagreement about their importance

as topics, there is substantial, vehement, and apparently intractable

disagreement about what individuals, practices, ideas,

and institutions are either racist or sexist-and for what reasons.

In dispute are a number of related questions concerning how individuals

and institutions ought to regard and respond to matters

relating to race or sex.

One particularly contemporary example concerns those programs

variously called programs of “affirmative action,” “preferential

treatment,” or “reverse discrimination” that are a feature

of much of our institutional life. Attitudes and beliefs about these

programs are diverse. Some persons are convinced that all such

programs in virtually ail of their forms are themselves racist and

sexist and are for these among other reasons indefensible. 1 The

Professor of Law and Professor of Philosophy, University of California,

Los Angeles. Copyright © 1977 by Richard A. Wasserstrom.

I Such a view appears to be held in, e.g., Brief for tbe Anti-Defamation

League of the Bnai B’rith as Amicus Curiae on Appeal, DeFunis v. Odegaard,

416 U.S. 312 ( 1974): “Discrimination on the basis of race is illegal, immoral,

unconstitutional, and inherently wrong.” !d. at 16-17; Mr. Justice Douglas’

dissent in DeFunis, supra: “There is no superior person by constitutional standards.

A DeFunis who is white is entitled to no advantage by reason of that

fact; nor is he subject to any disability, no matter what his race or color. Whatever

his race, he has a constitutional right to have his application considered on

its individual merits in a racially neutral manner,id. at 337; Anderson v. San

Francisco Unified School Dist., 357 F. Supp. 248 (N.D. Cal. 1972) : Preferential

treatment under the guise of ‘affirmative action’ is the imposition of racial

discrimination,id. at 249; Bakke v. Regents of the Univ. of Cal., 18 Cal. 3d 34,

553 P.2d 1152, 132 Cal. Rptr. 680 ( 1976), cert. granted, 45 U.S.L.W. 3437

(U.S. Dec. 14, 1976) (No. 7681 1) : We cannot agree with tbe proposition

that deprivation based on race is subject to a less demanding standard of review

under the Fourteenth Amendment if the race discriminated against is

the majority rather than a minority. We have found no case so holding, and we

do not hesitate to reject the notion that racial discrimination may be more easily

58].

582 UCLA LAW REVIEW [Vol. 24: 581

programs are causally explicable, perhaps, but morally reprehensible.

Other persons-a majority, I suspect-are sorely troubled

by these programs. They are convinced that some features of

some programs, e.g., quotas, are indefensible and wrong. Other

features and programs are tolerated, but not with fervor or enthusiasm.

They are seen as a kind of moral compromise, as, perhaps,

a lesser evil among a set of unappealing options. 2 They are reluctantly

perceived and implemented as a covert, euphemistic way

to do what would clearly be wrong–even racist or sexist-to do

overtly and with candor. And still a third group has a very different

view. They think these programs are important and appropriate.

They do not see these programs, quotas included, as racist

or sexist, and they see much about the dominant societal institutions

that is. 3 They regard the racism and sexism of the society

as accounting in substantial measure for the failure or refusal to

adopt such programs willingly and to press vigorously for their fuU

implementation.

justified against one race rather than another,” id. at 50, 553 P.2d at 1163, 132

Cal. Rptr. at 691 (footnotes omitted); Graglia, Special Admission of the “Culturally

Deprived” to Law School, 119 U. PA. L. REv. 351 ( 1970); Lavinsky,

DeFunis v. Odegaard: The Non-Decision with a Message, 75 CoLUM. L. REv.

520 (1975) .

I say such a view “appears to be held” because it is never wholly clear

within the context of constitutional adjudication and commentary whether the

claim is that it is wrong to take race into account in these ways or that it is

forbidden by the Constitution so to take race into account. The two claims are

intimately related. What one thinks about the rightness or wrongness of a

practice or program will, appropriately, influence the way in which a constitutional

provisionparticularly one as general as the equal protection clause of

the 14th amendment-is interpreted. And, in fact, it does appear that

those who think these programs are unconstitutional also believe that it is good

that the Constitution prohibits such programs, because they independently believe

that it is wrong to have programs such as these that take race into account.

But the two claims are also distinguishable. Legislative history, prior judicial

decisions, and various doctrinal considerations, such as standing and state action,

are also appropriately taken into account in interpreting and applying the Constitution

to particula r cases and practices.

The inquiry I conduct in this paper is not directed to the constitutional

question, but to broader questions concerning a number of moral, conceptual,

and methodological issues involving race and sex. Since the two kinds of questions

are related, my comments have relevance, I believe, within and for the

constitutional context. The focus of my inquiry is not the constitutional question,

however. I therefore do not seek to elucidate doctrine or even to discuss cases

and commentaries dealing with these matters in the way or to the degree one

might otherwise expect.

2 See, e.g., Nagel, Equal Treatme/11 and Compensatory Discrimination, 2

PHIL. & PUB. AFP. 348, 362 {1973).

3 Among those who have defended such programs, in one form or another,

are Askin, The Case for Compensatory Treatment, 24 RUT. L. REV. 65 ( 1964);

Bell, In Defense of Minority Admissions Programs: A Reply to Professor Graglia,

119 U. PA. L. REV. 364 (1970); Ely, The Constitlllionality of Reverse Discrimination,

41 U. Cm. L. REV. 723 ( 1974); Hughes, Reparations for Blacks, 43

1977] RACISM, SEXISM 583

I think that much of the confusion in thinking and arguing

about racism, sexism and affirmative action results from a failure

to see that there are three different perspectives within which the

topics of racism, sexism and affirmative action can most usefully

be examined. The first of these perspectives concentrates on

what in fact is true of the culture, on what can be called the social

realities. Here the fundamental question concerns the way the

culture is: What are its institutions, attitudes and ideologies in respect

to matters of race and sex?4

The second perspective is concerned with the way things

ought to be. From this perspective, analysis focuses very largely

on possible, desirable states of affairs. Here the fundamental

question concerns ideals: What would the good society-in terms

of its institutions, its attitudes, and its values-look like in respect

to matters involving race and sex?5

The third perspective looks forward to the means by which

the ideal may be achieved. Its focus is on the question: What

is the best or most appropriate way to move from the existing social

realities, whatever they happen to be, to a closer approx·imation

of the ideal society? This perspective is concerned with instrumentalities.

6

Many of the debates over affirmative action and over what

things are racist and sexist are unilluminating because they neglect

to take into account these three perspectives, which are important

and must be considered separately. While I do not claim that all

the significant normative and conceptual questions concerning

race, sex, or affirmative action can be made to disappear, I do

believe that an awareness and use of these perspectives can produce

valuable insights that contribute to their resolution. In particular,

it can almost immediately be seen that the question of

whether something is racist or sexist is not as straightforward or

unambiguous as may appear at first. The question may be about

social realities, about how the categories of race or sex in fact

function in the culture and to what effect. Or the question may

be about ideals, about what the good society would make of race

or sex. Or the question may be about instrumentalities, about

how, given the social realities as to race and sex, to achieve a

closer approximation of the ideal. It can also be seen, therefore,

that what might be an impermissible way to take race or sex into

account in the ideal society, may also be a desirable and appro-

N.Y.U. L. R EV. 1063 ( 1968). The precise programs defended vary greatly, as

do the reasons offered to justify them.

4 This perspective is discussed in Part I infra.

5 This perspective is discussed in Part II infra.

s This perspective is discussed in Part ill infra.

584 UCLA LAW REVIEW [Vol. 24: 581

priate way to take race or sex into account, given the social realities.

It is these three different perspectives and these underlying

issues that I am interested in exploring. This framework is used

to clarify a number of the central matters that are involved in

thinking clearly about the topics of racism, sexism and affirmative

action. Within this framework, some of the analogies and disanalogies

between racism and sexism are explored-the ways they are

and are not analytically interchangeable phenomena. I also provide

an analytic scheme for distinguishing different respects in

which a complex institution such as the legal system might plausibly

be seen to be racist or sexist. And I examine some of the

key arguments that most often arise whenever these topics are

considered. In respect to programs of affirmative action, or preferential

treatment, I argue specifically that much of the opposition

to such programs is not justifiable. It rests upon confusion

in thinking about the relevant issues and upon a failure to perceive

and appreciate some of the ways in which our society is racist and

sexist. I argue that there is much to be said for the view that

such programs, even when they include quotas, are defensible and

right. My central focus is not, however, on affirmative action per

se, but rather on how a consideration of affirmative action is

linked to a deepened understanding of these larger, related issues.

!. SoCIAL REALITIES

One way to think and talk about racism and sexism is to concentrate

upon the perspective of the social realties. Here one

must begin by insisting that to talk about either is to talk about

a particular social and cultural context. In this section I concentrate

upon two questions that can be asked about the social realities

of our culture. First, I consider the position of blacks and

females in the culture vis-a-vis the position of those who are white,

and those who are male. And second, I provide an analysis of

the different ways in which a complex institution, such as our legal

system, can be seen to be racist or sexist. The analysis is offered

as a schematic account of the possible types of racism or sexism.

A. The Position of Blacks and Women

In our own culture the first thing to observe is that race and

sex are socially important categories. They are so in virtue of the

fact that we live in a culture which has, throughout its existence,

made race and sex extremely important characteristics of and for

all the people living in the culture. 7

7 In asserting the importance of one’s race and sex in our culture I do

1977] RACISM, SEXISM 585

It is surely possible to imagine a culture in which race would

be an unimportant, insignificant characteristic of individuals. In

such a culture race would be largely if not exclusively a matter

of superficial physiology; a matter, we might say, simply of the

way one looked. And if it were, then any analysis of race and

racism would necessarily assume very different dimensions from

what they do in our society. In such a culture, the meaning of

the term racewould itself have to change substantially. This

can be seen by the fact that in such a culture it would literally

make no sense to say of a person that he or she was “passing. 8

This is something that can be said and understood in our own culture

and it shows at least that to talk of race is to talk of more

than the way one looks. 0

Sometimes when people talk about what is wrong with affirmative

action programs, or programs of preferential hiring, they

say that what is wrong with such programs is that they take a thing

as superficial as an individual’s race and turn it into something

important.10 They say that a person’s race doesn’t matter; other

not mean to deny the importance of other characteristics–in particular, socioeconomic

class. I do think that in our culture race and sex are two very important

facts about a person, and I am skeptical of theories which reducethe

importance of these features to a single, more basic one, e.g., class. But apart

from this one bit of skepticism I think that all of what I have to say is compatible

with several different theories concerning why race and sex are so importantincluding,

for instance, most versions of Marxism. See, e.g., the account provided

in J. MITCHELL, WoMAN’s ESTATE (1971) . The correct causal explanation for

the social realities I describe is certainly an important question, both in its own

right and for some of the issues I address. It is particularly significant for the

issue of how to alter the social realities to bring them closer to the ideal. See

Part III infra. Nonetheless, I have limited the scope of my inquiry to exclude a

consideration of this large, difficult topic.

8 Passing is the phenomenon in which a person who in some sense knows

himself or herself to be black “passes” as white because he or she looks white.

A version of this is described in Sinclair Lewis’ novel K.lNGSBLOOD RoYAL (1947) ,

where the protagonist discovers when he is an adult that he, his father, and his

father’s mother are black (or, in the idiom of the late 1940′s, Negro) in virtue

of the fact that his great grandfather was black. His grandmother knew this

and was consciously passing. When he learns about his ancestry, one decision he

has to make is whether to continue to pass, or to acknowledge to the world that

he is in fact “Negro.”

o That looking black is not in our culture a necessary condition for being

black can be seen from the phenomenon of passing. That it is not a sufficient

condition can be seen from the book BLACK LIKE MB ( 1960), by John Howard

Griffin, where “looking black” is easily understood by the reader to be different

from being black. I suspect that the concept of being black is, in our culture,

one which combines both physiological and ancestral criteria in some moderately

complex fa shion.

10 Mr. Justice Douglas suggests something like this in his dissent in

DeFunis: The consideration of race as a measure of an applicant’s qualification

normally introduces a capricious and irrelevant factor working an invidious discrimination.”

DeFunis v. Odegaard, 416 U.S. 312, 333 (1974) ..

586 UCLA LAW REVIEW [Vol. 24: 581

things do, such as qualifications. Whatever else may be said of

statements such as these, as descriptions of the social realities

they seem to be simply false. One complex but true empirical

fact about our society is that the race of an individual is much

more than a fact of superficial physiology. It is, instead, one of

the dominant characteristics that affects both the way the individual

looks at the worl~ and the way the world looks at the individual.

As I have said, that need not be the case. It may in fact

be very important that we work toward a society in which that

would not be the case, but it is the case now and it must be understood

in any adequate and complete discussion of racism. That

is why, too, it does not make much sense when people sometimes

say, in talking about the fact that they are not racists, that they

would not care if an individual were green and came from Mars,

they would treat that individual the same way they treat people

exactly like themselves. For part of our social and cultural history

is to treat people of certain races in a certain way, and we do not

have a social or cultural history of treating green people from Mars

in any particular way. To put it simply, it is to misunderstand

the social realities of race and racism to think of them simply as

questions of how some people respond to other people whose

skins are of different hues, irrespective of the social context.

I can put the point another way: Race does not function in our

culture as does eye color. Eye color is an irrelevant category; nobody

cares what color people’s eyes are; it is not an important cultural

fact; nothing turns on what eye color you have. It is important

to see that race is not like that at all. And this truth affects what

will and will not count as cases of racism. In our culture to be

nonwhite-and especially to be black11-is to be treated and seen

to be a member of a group that is different from and inferior

to the group of standard, fully developed persons, the adult white

males. To be black is to be a member of what was a despised

minority and what is still a disliked and oppressed one.12 That

11 There are significant respects in which the important racial distinction

is between being white and being nonwhite, and there are other significant respects

in which the fact of being black has its own special meaning and importance.

My analysis is conducted largely in terms of what is involved in being

black. To a considerable extent, however, what I say directly applies to the

more inclusive category of being nonwhite. To the extent to which what I say

does not apply to the other nonwhite racial distinctions, the analysis of those

distinctions should, of course, be undertaken separately.

12 See, e.g., I. BALDWIN, THE FIRE NEXT TIME (1963); W.E.B. DuBOIS, THe

SoULS OF BLACK FOLKS (1903); R. ELLISON, INVISIBLE MAN (1952); J. FRANK·

UN, FROM SLAVERY TO FREEDOM (3d ed. 1968); C. HAMILTON & S. CARMICHAEL,

BLACK POWER ( 1967); REPORT OF THE U.S. COMMISSION ON CIVIL DISORDERS

(1968); Kitson, Whither Integration?, 45 AM. SCHOLAR 360 (1976); and hundreds,

if not thousands of other books and articles, both literary and empirical. These

1977] RACISM, SEXISM 587

is simply part of the awful truth of our cultural and social history,

and a significant feature of the social reality of our culture today.

We can see fairly easily .that the two sexual categories, like the

racial ones, are themselves in important respects products of the society.

Like one’s race, one’s sex is not merely or even primarily a

matter of physiology. To see this we need only realize that we can

understand the idea of a transsexual. A transsexual is someone who

would describe himself or herself either as a person who is essentially

a female but through some accident of nature is trapped in

a male body, or a person who is essentially a male but through

some accident of nature is trapped in the body of a female. His

(or her) description is some kind of a shorthand way of saying

that he (or she) is more comfortable with the role allocated by

. the culture to people who are physiologically of the opposite sex.

The fact that we regard this assertion of the transsexual as intelligible

seems to me to show how deep .the notion of sexual identity

is in our culture and how little it has to do with physiological

differences between males and females. Because people do pass

in the context of race and because we can understand what passing ·

means; because people are transsexuals and because we can understand

what transsexuality means, we can see that the existing

social categories of both race and sex are in this sense creations

of the culture.

It is even clearer in the case of sex than in the case of race

that one’s sexual identity is a centrally important, crucially relevant

category within our culture. I think, in fact, that it is more important

and more fundamental than one’s race. It is evident that there

are substantially different role expectations and role assignments

to persons in accordance with their sexual physiology, and that the

positions of the two sexes in the culture are distinct. We do have

a patriarchal society in which it matters enormously whether one

is a male or a female.13 By almost all important measures it is

more advantageous to be a male rather than a female.

sources describe a great variety of features of the black experience in America:

such things as the historical as well as the present day material realities, and the

historical as well as present day ideological realities, the way black people have

been and are thought about within the culture. In KlNGSBLOOD ROYAL, supra note

8, Lewis provides a powerful account of what he calls the American Credo”

about the Negro, circa 1946. /d. at 194-97.

13 The best general account I have read of the structure of patriarchy and

of its major dimensions and attributes is that found in SEXUAL PoLmcs in the

chapter, ”Theory of Sexual Politics.” K. MlLLEIT, SEXUAL POLITICS 23-58

(1970). The essay seems to me to be truly a major contribution to an understanding

of the subject. Something of the essence of the thesis is contained in

the following:

[A) disinterested examination of our system of sexual relationship must

point out that the situation between the sexes now, and throughout his588

UCLA LAW REVIEW [Vol. 24: 581

Women and men are socialized differently. We learn very

early and forcefully that we are either males or females and that

much turns upon which sex we are. The evidence seems to be

to be overwhelming and well-documented that sex roles play a

fundamental role in the way persons think of themselves and the

world-to say nothing of the way the world thinks of them.14

Men and women are taught to see men as independent, capable,

and powerful; men and women are taught to see women as dependent,

limited in abilities, and passive. A woman’s success or

failure in life is defined largely in terms of her activities within

the family. It is important for her that she marry, and when she

does she is expected to take responsibility for the wifely tasks:

the housework, the child care, and the general emotional welfare

tory, is a case of that phenomenon Max Weber defined as herrsclzaft, a

relationship of dominance and subordinance. What goes largely un·

examined, often even unacknowledged (yet is institutionalized nonetheless)

in our social order, is the birthright priority whereby males rule

females. Through this system a most ingenious form of “interior

colonization” has been achieved. It is one which tends moreover to be

sturdier than any form of segregation and more rigorous than class

stratification, more uniform, certainly more enduring. However muted

its present appearance may be, sexual dominion obtains nevertheless as

perhaps the most pervasive ideology of our culture and provides its

most fundamental concept of power.

This is so because our society, like all other historical civilizations,

is a patriarchy. The fact is evident at once if one recalls that the

military, industry, technology, universities, science, political office, and

finance-in short, every avenue of power within the society, including

the coercive force of the police, is entirely in male hands .

Sexual politics obtains consent through the “socialization” of both

sexes to basic patriarchal politics with regard to temperament, role, and

status. As to status, a pervasive assent to the prejudice of male superiority

guarantees superior status in the male, inferior in the female. The

first item, temperament, involves the formation of human personality

along stereotyped lines of sex category (“masculine” and feminine”),

based on the needs and values . of the dominant group and dictated by

what its members cherish in themselves and find convenient in subordinates:

aggression, intelligence, force and efficacy in the male;

passivity, ignorance, docility, “virtue,” and ineffectuality in the female.

This is complemented by a second factor, sex role, which decrees a

consonant and highly elaborate code of conduct, gesture and attitude

for each sex. In terms of activity, sex role assigns domestic service and

attendance upon infants to the female, the rest of human achievement,

interest and ambition to the male. . . . Were one to analyze the three

categories one might designate status as the political component, role as

the sociological, and temperament as the psychological-yet their interdependence

is unquestionable and they form a chain.

!d. at 24-26 (footnotes omitted).

14 See, e.g., Hochschild, A Review of Sex Role Research, 78 AM. J. Soc.

1011 (1973), which reviews and very usefully categorizes the enormous volume

of literature on this topic. See also Stewart, Social Influences on Sex Differences

in Behavior, in SEx DIFFERENCES 138 (M. Teitelbaum ed. 1976); Weitzman, SexRole

Socialization, in WoMEN: A FEMJNIST PERSPECTIVE 105 (J. Freeman ed.

1975). A number of the other pieces in WOMEN : A FEMINIST PERSPECTJYE also

describe and analyze the role of women in the culture, including the way they

are thought of by the culture. I return to consider further the question of what

accounts for the existing psychological and sociological sex differences in pp.

609-15 in/ ra.

1977] RACISM, SEXISM 589

of the husband and children.15 Her status in society is determined

in substantial measure by the vocation and success of her husband.

16 Economically, women are substantially worse off than

men. They do not receive any pay for the work that is done in

the home. As members of the labor force their wages are significantly

lower than those paid to men, even when they are engaged

in similar work and have similar educational backgrounds.17

The higher the prestige or the salary of the job, the less present

women are in the labor force. And, of course, women are conspicuously

absent from most positions of authority and power in

the major economic and political institutions of our society.

As is true for race, it is also a significant social fact that to

be a female is to be an entity or creature viewed as different from

the standard, fully developed person who is male as well as white.

But to be female, as opposed to being black, is not to be conceived

of as simply a creature of less worth. That is one important thing

that differentiates sexism from racism: The idelology of sex, as

opposed to the ideology of race, is a good deal more complex and

confusing. Women are both put on a pedestal and deemed not

fully developed persons. They are idealized; their approval and

lu For the married woman, her husband and children must always

come first; her own needs and desires, last. When the children reach

school age, they no longer require constant attention. The emotionalexpressive

function assigned to the woman is still required of her.

Called the “stroking function” by sociologist J essie Bernard, it consists

of showing solida rity, raising the status of others, giving help, rewarding,

agreeing, concurring, complying, understanding, and passively accepting.

The woman is expected to give emotional support and comfort to other

family members, to make them feel like good and worthwhile human

beings.

B. DECKARD, THE WOMEN’S MOVEMENT 59 ( 1975), citing J. BERNARD, WoMEN

AND THE PUBLIC INTEREST 88 ( 1971).

Patriarchy’s chief institu tion is the family. It is both a mirror of

and a connection with the larger society; a patriarchal unit within a

patriarchal whole. Mediating between the individual and the social

structure, the family effects control and conformity where political and

other authorities are insufficient.

K . MILLETT, supra note 13, at 33.

16 Even if the couple consciously try to attain an egalitarian marriage,

so long as the traditional division of labor is maintained, the husband

will be “more equal.” He is the provider not only of money but of

status. Especially if he is successful, society values what he does; she

is just a housewife. Their friends are likely to be his friends and coworkers;

in their company, she is just his wife. Because his provider

function is essential for the family’s survival, major family decisions are

made in terms of how they affect his career. He need not and usually

does not act like the authoritarian paterfamilius [sic] of the Victorian

age. His power and status are derived from his function in the family

and are secure so long as the traditional division of labor is maintained.

B. DECKARD, supra note 15, at 62.

17 In 1970, women workers were, on the average, paid only 59 percent of

men’s wages. And when wages of persons with similar educational levels are

compared, women still were paid over 40 percent less than men. /d. at 79-8 1.

590 UCLA LAW REVIEW [Vol. 24: 581

admiration is sought; .and they are at the same tinie regarded as

less competent than men and less able to live fully developed, fully

human lives-for that is what men do.18 At best, they are viewed

and treated as having properties and attributes that are valuable

and admirable for humans of this type. For example, they

may be viewed as especially empathetic, intuitive, loving, and nurturing.

At best, these qualities are viewed as good properties for

women to have, and, provided they are properly muted, are sometimes

valued within the more well-rounded male. Because the

sexual ideology is complex, confusing, and variable, it does not

unambiguously proclaim the lesser value attached to being female

rather than being male, nor does it unambiguously correspond to

the existing social realities. For these, among other reasons, sexism

could plausibly be regarded as a deeper phenomenon than

racism. It is more deeply embedded in the culture, and thus less

visible. Being harder to detect, it is harder to eradicate. Moreover,

it is less unequivocally regarded as J.mjust and unjustifiable.

That is to say, then~ is ·less agreement within the dominant. ideology

tP,at sexism even implies an unjustifiable practice or attitude.

Henc·e, many persons announce, without regret or embarrassment,

that they are sexists or male chauvinists; very few announce

openly that they are racists.19 For all of these reasons sexism may

18 It is generally accepted that Western patriarchy has been much

softened by the concepts of courtly and romantic love. While this is

certainly true, such influence has also been vastly overestimated. In

comparison with the candor of “machismo” or oriental behavior, one

realizes how much of a concession traditional chivalrous behavior

represents-a sporting kind of reparation to allow the subordinate

female certain means of saving face. While a palliative to the injustice

of woman’s social position, chivalry is also a technique for disguising

it. One must acknowledge that the chivalrous stance is a game the

master group plays in elevating its subject to pedestal level. Historians

of courtly love stress the fact that the raptures of the poets had no

effect upon the legal or economic standing of women, and very little

upon their social status. As the sociologist Hugo Beigel has observed,

both the courtly and the romantic versions of love are “grants” which

the male concedes out of his total powers. Both have the effect of

obscuring the patriarchal character of Western culture ,;md in their general

tendency to attribute impossible virtues to women, have ended by

confining them in a narrow and often remarkably conscribing sphere of

behavior. It was a Victorian habit, for example, to insist the female

assume the function of serving as the male’s conscience and living the

life of goodness he found tedious but felt someone ought to do anyway.

K. MILLE.TI, supra note 13, at 36-37.

I O Thus, even after his “joke” about black persons became known to the

public, the former Secretary of Agriculture, Earl Butz, took great pains to insist

that this in no way showed that he was a racist. This is understandable, given

the strongly condemnatory feature of being described as a racist.

Equally illuminating was the behavior of Butz’s associates and superiors.

Then-President Ford, for example, criticized Butz for the joke, but did not demand

Butz’s removal until there was a strong public outcry. It was as though

Butz’s problem was that he bad been indiscreet; he had done something rude like

belching in public. What Ford, Butz, and others apparently failed to grasp is that

it is just as wrong to tell these jokes in private· because to · tell a joke of this sort

is to have a view about what black people are like: that !hey can appropriately

1977] RACISM, SEXISM 591

b;e a more insidious evil than racism, but’ there is little merit in

trying to decide. between two seriously objectionable practices

which one is worse.

While I do not think that I have made very controversial

claims about either our cultural history or our present-day culture,

I am aware of the fact that they have been stated very imprecisely

and that I have offered little evidence to substantiate them. In

a crude way we ought to be able both to understand the claims

and to see that they are correct if we reflect seriously and critically

upon our own cultural institutions, attitudes, and practices ... But

in a more refined, theoretical way, I am imagining that a more

precise and correct d,escription of th~ social reality in . respect to

race and sex would ,b~ derivable from a composite, descriptive account

of .our society whi~h utilized the relevant social sciepces to

examine such things as the societ}”s. institutions, practices, attitudes

and ideology20-if the social sciences could be value-free

and unaffecteq in outlook or approach by the fact that they, them~

selv~s, are largely compos~d of persons. who are white and male.21

Viewed from the perspective ·of soCial reality it should be

clear, t96, that racism. and sexism. should not be thought of as .p)le- .

nomemi that. consist simply in . taking a person’s race ,or sex into

account, or even si!Jlply in ta}cing .a. person’s race or sex i~to ac- .

count in an arbitrary way. Instead, racism and sexism consist in

taking race and sex into account in a cer.tain wa,y, in the context

of a specific set . ·of in~titutional an;~ngementli ‘and a spe.cific ideology

which together create and maintain a system of unjust insti-

I • • • 1, I t ; ..

be ridiculed as being creatures, who aare only about intercourse, shoes, and

defecation. What these persons also failed to grasp is how irilplausible it is to

believe th!lt one. can hold these views about black people and at,the same .time ·

deal with them,in a nonracist fashion. , .

20 At a 1)1inimum, this account woulq inclucje: (1) a desqription of the ·

ecQnomic, political, .iind social positions of blacks and whites, males and females

in the culture; (f) a description of..the sexual and racial -ro les, i,.e.; the rules;

conventions and h pedatiops concerning ho\M males and females, . blackS!and

whites, should behave, and. the attitudes and rt:sponses produced by these xoles; ·

and. ( 3). a descriptiOfl }>f the de fljcto ideology., of racial . find ~efCU.:J.I differences,

This would include popular beliefs about ~ow males and fewales, .blaci<s and ·

whites, differ, ,’as well as the beliefs as to ,.what accountsfor these differences·,

rol~s, and econom i ~, politicl;ll and socjal realities. . , t ,. r I· ·1

:!l Tlie ,problem of empiri<;\11 o,J?jectivity is co.mpo;yndeq, by the far;:t that

pait of the dominllnt, white male iqeology is . that white males are the one group

in society whose members are able to be genuinely detached and objective when

it comes to things like an understanding of the place of race and sex in the

culture. Thus, for example, when a sex-discrimination suit was brought against

a law firm and the case was assigned to Judge Constance Motley, the defendant

filed a motion that she be disqualified pa rtly because, as a woman

judge, she would be biased in favor of the plaintiff. Judge Motley denied the

motion. Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975), writ of

mandamus denied sub nom. Sullivan & Cromwell v. Motley, No. 75-3045 (2d

Cir. Aug. 26, ·1975). Explaining her decision, Judge Motley stated: “[J]f back592

UCLA LAW REVIEW [Vol. 24: 581

tutions and unwarranted beliefs and attitudes. That system is and

has been one in which political, economic, and social power and

advantage are concentrated in the bands of those who are white

and male.

One way to bring this out, as well as to show another respect

in which racism and sexism are different, concerns segregated

bathroomsa topic that may seem silly and trivial but which is

certainly illuminating and probably important. We know, for instance,

that it is wrong, clearly racist, to have racially segregated

bathrooms. There is, however, no common conception that it is

wrong, clearly sexist, to have sexually segregated ones. How is

this to be accounted for? The answer to the question of why it

was and is racist to have racially segregated bathrooms can be discovered

through a consideration of the role that this practice

played in that system of racial segregation we had in the United

States-from, in other words, an examination of the social realities.

For racially segregated bathrooms were an important part

of that system. And that system had an ideology; it was complex

and perhaps not even wholly internally consistent. A significant

feature of the ideology was that blacks were not only less than

fully developed humans, but that they were also dirty and impure.

They were the sorts of creatures who could and would contaminate

white persons if they came into certain kinds of contact with

them-in the bathroom, at the dinner table, or in bed, although

it was appropriate for blacks to prepare and handle food, and even

to nurse white infants. This ideology was intimately related to a

set of institutional arrangements and power relationships in

which whites were politically, economically, and socially dominant.

The ideology supported the institutional arrangements, and the institutional

arrangements reinforced the ideology. The net effect

was that racially segregated bathrooms were both a part of the

institutional mechanism of oppression and an instantiation of this

ideology of racial taint. The point of maintaining racially segregated

bathrooms was not in any simple or direct sense to keep

both whites and blacks from using each other’s bathrooms; it was

to make sure that blacks would not contaminate bathrooms used

by whites. The practice also taught both whites and blacks that

certain kinds of contacts were forbidden because whites would be

degraded by the contact with the blacks.

The failure to understand the character of these institutions

of racial oppression is what makes some of the judicial reasoning

ground or sex or race of each judge were, by definition, sufficient grounds for

removal, no judge on this court could hear this case, or many others, by virtue

of the fact that all of them were attorneys, of a sex, often with distinguished

law firm or public service backgrounds.” 418 F. Supp. at 4 (emphasis added).

1977] RACISM, SEXISM 593

about racial discrimination against blacks so confusing and unsatisfactory.

At times when the courts have tried to explain what

is constitutionally wrong with racial segregation, they have said that

the problem is that race is an inherently suspect category. What

they have meant by this, or have been thought to mean, is that

any differentiation among human beings on the basis of racial

identity is inherently unjust, because arbitrary, and therefore any

particular case of racial differentiation must be shown to be fully

rational and justifiable.22 But the primary evil of the various

schemes of racial segregation against blacks that the courts were

being called upon to assess was not that such schemes were a

capricious and irrational way of allocating public benefits and burdens.

That might well be the primary wrong with racial segregation

if we lived in a society very different from the one we have.

The primary evil of these schemes was instead that they designedly

and effectively marked off all black persons as degraded,

dirty, less than fully developed persons who were unfit for full

membership in the political, social, and moral community.23

It is worth observing that the social reality of sexually segregated

bathrooms appears to be different. The idea behind such

sexual segregation seems to have more to do with the mutual undesirability

of the use by both sexes of the same bathroom at the

same time. There is no notion of the possibility of contamination;

or even directly of inferiority and superiority. What seems to be

involved-at least in part-is the importance of inculcating and

preserving a sense of secrecy concerning the genitalia of the

22 Thus, in Bolling v. Sharpe, 347 U.S. 497 (1953) , the Supreme Court

said that what was wrong with preventing black children from attending the all

white schools of the District of Columbia was that

[s]egregation in public education is not reasonably related to any proper

governmental objective, and thus it imposes on Negro children of the

District of Columbia a burden that constitutes an arbitrary deprivation

of their liberty in violation of the Due Process Clause.

!d. at 500. I ignore those cases in which the courts decline to formulate a view

about racial diffe rentiation because the behavior involved is not the sort that the

law thinks it appropriate to deal with, e.g., private” racial discrimination.

23 Others have made this general point about the nature of the evil of racial

segregation in the United States. See, e.g., Ely, note 3 supra; Fiss, Groups and

Equal Protection, 5 PHIL. & Pus. AFF. 107 ( 1976); Thalberg, Reverse Discrimination

and the Future, 5 PHIL. F. 268 (1973).

The failure fully to understand this general point seems to me to be one

of the things wrong with Weschler’s famous article, Toward Neutral Principles of

Constitlltional Interpretation, 73 HARV. L. Rev. I ( 1959). Near the very end

of the piece Weschler reports, In the days when I joined with Charles H. Houston

[a well-known black lawyer] in a litigation in the Supreme Court, before the

present building was constructed, he did not suffer more than I in knowing that

we had to go to Union Station to lunch together during the recess.” Id. at 34.

If the stress in that sentence is wholly on the fact of knowing, no one can say

for certain that Weschler is wrong. But what is certain is that Charles H. Houston

suffered more than Weschler from living in a system in which he could only lunch

at Union Station.

594 UCLA LAW REVIEW [Vol. 24: 581

opposite sex. What seems to be at stake is .the maintenance of

that same sense of fuyster.y or forbiddenness about the other sex’s

sexJ.Iality whicli is fosterep by the general prohibition upon public

nudi~y and the imasham~d. vi~wing of genitalia.

. Sexually s~gregated bathrooms simply play a different role

in our ·culture th;ill pid racially segregated ones. But that is not

t’o say that the ~ole they ~l~y is either benign. or unobjectionable-.

~nly ~hat it i~ Ciiffere~t. Sexually segregated bathrooms may well

be objectibrui.bl~; b\..rt h.ete tbo, .the o6jecpon is not on the ground

that .they aie prima fati~ caprici<?tis or arbitrary . . Rather, th~. case

against t~em no\V :would. rest on the gn:mn,d that ¢ey are,, perhaps;

qrie sinall part of that scheme of sex-role. differentiation which uses

tlie niy§ter)’.of sexual aqatotny, among other things, to maintain the

primacy of ~et~rosextlal sexual attraction ceQtra1 to that version of

the ·ratriaichal system of power. relatiorlships, we have today.24

Whether sexually segregatea bathrooms , woulp oe objectionaole,

~~caU~e ir~ati,onal: in the ,g,obd sq~ie~ depend_s once agai~ upon

wh~t the gobtl society would look like m respect to sexual differentiatitm:

B. Types of Racism or Sexism

Another rectirrlng question that can profitably be examined

w!thiri the perspective of social realities is whether the legal system

is racist dr sexist. Indeed, it seems to me essential that the

social realities of the relationships and ideologies concerning race

and sex be kept in mind whenever one is trying to assess claims

that are made about the racism or sexism of important institutions

such as the legal system. It is also of considerable importance

in assessing such claims to understand that even within the perspective

of social reality, racism or sexism can manifest itself, or

be understood, in different ways. That these are both important

points can be seen through a brief examination of the different,

distinctive ways in which our own legal system might plausibly be

understood to be racist. The mode of analysis I propose serves

as well, I believe, for an analogous analysis of the sexism of the

legal system, although I do not undertake the latter analysis in this

paper.

The first type of racism is the simplest and the least controversial.

It is the case of overt racism, in which a law or a legal

institution expressly takes into account the race of individuals in

order to assign benefits and burdens in such a way as to bestow

24 This conjecture about the role of sexually segregated bathrooms may

well be inaccurate or incomplete. The sexual segregation of bathrooms may have

more to do with privacy than with patriarchy. However, if so, it is at least odd

that what the institution makes relevant is sex rather than merely the ability to

perform the eliminatory acts in private.

1977] RACISM, SEXISM 595

an unjustified benefit upon a member or members of the. raciall’

dominant group or ·an unjustified burden upon members of· the

racial groups that are oppressed. We no longer have many, if any,

cases of overt racism in our legal system today, although we certainly

had a number in the past. Indeed, the historical system of

formal, racial segregation was both buttressed by, and constituted

of, a number of overtly racist laws and practices. At different times

in our history, racism included laws and practices which d~alt with

such things as the exclusion of nonwhites froni the franchiSe, from

decent primary and secondary .. scnools a,nd most p.~;ofessional

schools, and the pr~hibition . against interracial marfiages .

. The seconq type of racism .is . .ve.ry similar to overt :t;acisw. It

is covert; but intentional;. racisni, in which a law or a .legal institution

ha& as its purpose. th~ a)location of benefits and burdens in

order to support the po’}’er of the dominant race, but does not

use race specifically as. a. basis for aiJocating these benefits and

burdens. One particularly good historical example inv.olves the

use of grandfather clauses whic.h were inserted in s~atute.s ,govem7

ing voter registration in a number of states after passage of the

fifteenth amendment. 25

Covert racism within the law is not entirely a thing of the

past. Many instances of de facto school segregation in the North

and West are cases of covert racism. At times certain school boards

-virtually all of which are overwhelmingly white in compositionquite

consciously try to maintain exclusively or predominantly

white schools within a school district. The classifications such

school boards use are not ostensibly racial, but are based upon

the places of residence of the affected students. These categories

provide the opportunity for covert racism in engineering the racial

composition of individual schools within the board’s jurisdiction.26

What has been said so far is surely neither novel nor controversial.

What is interesting, however, is that a number of persons

25 S.ee, e.g.., G’!Jinn v. United States, 23~ U.S. 347 (1~15). SP,ch statutes

provided that the grandchild of someone who had been registered to vote in the

state was permitted to vote in that state; but the gra,ndchild of somebody ytho had

never been registered to vote in the state had to take ~ special test in order to

become qualified to vote. It does not t!lke much knQwledge~ history tp ~nQy.r

that in most of the SO\lthern states few if any black people hl\d grandparents WhO

before the Civil War were registered to vote. And the ~ersqns who enacted these

laws knew it too. So even thoqgh race was not made 1\ category by the described

laws, they e~ectively divided people Qn gro~nds or race intp those who

were qqalifi ed to vote without more, and those who had to svbmit to substantially

more rigorous tests pefore they co4ld exercise the franchise. All of this was

done, as is well known, ~0 as to perpetuate’ the control of the franchise by

whites.

26 See, e.g., Crawford v. Board of Educ., 17 Cal. 3d 280 ( 1976); Jackson v.

Pasadena City School Dist., 59 Cal. 2d 876, 382 P.2d 878, l1 Cal. Rptr. 606

( 1963 ).

596 UCLA LAW REVIEW [Vol. 24: 581

appear to believe that as long as the legal system is not overtly

or covertly racist, there is nothing to tl1e charge that it is racist.

So, for example, Mr. J ustice Powell said in a speech a few years

ago:

It is of course true that we have witnessed racial injustice

in the past, as has every other country with significant racial

diversity. But no one can fairly question the present national

commitment to full equality and justice. Racial discrimination,

by state action, is now proscribed by laws and

court decisions which protect civil liberties more broadly

than in any other country. But laws alone are not enough.

Racial prejudice in the hearts of men cannot be legislated

out of existence; it will pass only in time, and as human beings

of all races learn in humility to respect each other-a process

not furthered by recrimination or undue self-accusation.27

I believe it is a mistake to think about the problem of racism

in terms of overt or covert racial discrimination by state action,

which is now banished, and racial prejudice, which still lingers,

but only in the hearts of persons. For there is another, more subtle

kind of racism-unintentional, perhaps, but effective-which is as

much a part of the legal system as are overt and covert racist laws

and practices. It is what some critics of the legal system probably

mean when they talk about the “institutional racism” of the legal

system.28

r’ There are at least two kinds of institutional racism. The first

is the racism of sub-institutions within the legal system such as

the jury, or the racism of practices built upon or countenanced

by the law. These institutions and practices very often, if not always,

reflect in important and serious ways a variety of dominant

values in the operation of what is apparently a neutral legal mechanism.

The result is the maintenance and reenforcement of a system

in which whites dominate over nonwhites. One relatively

uninteresting (because familiar) example is the case of de facto

school segregation. As observed above, 20 some cases of de facto

27 N.Y. Times, Aug. 31, 1972, § I, at 33, col. 3.

28 All of the laws, institutional arrangements, etc., that I analyze are, I

think, cases of racism and not, for example, cases of prejudice. The latter concept

I take to refer more specifically to the defective, incomplete or objectionable beliefs

and attitudes of individuals. Prejudiced individuals often engage in racist acts,

enact racist laws and participate in racist institutions. But they need not. Nor

is it true that the only persons connected with racist acts, laws, or institutions

need be prejudiced individuals.

A perceptive account of the differences between prejudice and racism, and

of the different kinds of racism, including institutional racism of the sorts I

discuss below, can be found in M. JONES, PREJUDICE AND RACISM ( 1972). See

especially id. at 60-115 ( ch. 4, “Perspectives on Prejudice”); id. at 116-67 ( ch. 5,

Realities of Racism”). A somewhat analogous set of distinctions concerning

sexism is made in Jaggar, On Sexual Equality, 84 ETiiiCS 275, 276-77 (1974).

29 See p. 595 supra.

1977] RACISM, SEXISM 597

segregation are examples of covert racism. But even in school

districts where there is no intention to divide pupils on grounds

of race so as to maintain existing power relationships along racial

lines, school attendance zones are utilized which are based on the

geographical location of the pupil. Because it is a fact in our culture

that there is racial discrimination against black people in respect

to housing, it is also a fact that any geographical allocation

of pupils-unless one pays a lot of attention to housing patternswill

have the effect of continuing to segregate minority pupils very

largely on grounds of race. It is perfectly appropriate to regard

this effect as a case of racism in public education. 30

A less familiar, and hence perhaps more instructive, example

concerns the question of the importance of having blacks on juries,

especially in cases in which blacks are criminal defendants. The

orthodox view within the law is that it is unfair to try a black defendant

before an all-white jury if blacks were overtly or covertly

excluded from the jury rolls used to provide the jury panel, but

not otherwise. 31 One reason that is often given is that the systematic

exclusion of blacks increases too greatly the chance of racial

prejudice operating against the black defendant.32 The problem

with this way of thinking about things is that it does not make

much sense. If whites are apt to be prejudiced against blacks,

then an all-white jury is just as apt to be prejudiced against a black

defendant, irrespective of whether blacks were systematically excluded

from the jury rolls. I suspect that the rule has developed

in the way it has because the courts think that many, if not most,

ao One example of what may have been an instance of genuine de facto

racism in a noneducational setting is found in Gregory v. Litton Systems, Inc.,

316 F. Supp. 401 (C. D. Cal. 1970), modified, 472 F.2d 63 1 (9th Cir. 1972).

Litton Systems had a policy of refusing to employ persons who had been frequently

arrested. The court found this to violate Title VII of the Civil Rights

Act of 1964, 42 U .S.C. § 2000e ( 1970) :

Negroes are arrested substantially more frequently than whites in

proportion to their numbers. The evidence on this question was overwhelming

and utterly convincing. For example, negroes nationally

comprise some II o/o of the population and account for 27% of reported

arrests and 45% of arrests reported as “suspicious arrests”. Thus, any

policy that disqualifies prospective employees because of having been

arrested once, or more than once, discriminates in fact against negro

applicants. This discrimination exists even though such a policy is objectively

and fairly applied as between applicants of various races. A

substantial and disproportionately large number of negroes are excluded

from employment opportunities by Defendant’s policy.

316 F. Supp. at 403.

31 Whitus v. Georgia, 385 U.S. 545 (1967), Avery v. Georgia, 345 U.S.

559 (“1953), and Strauder v. West Virginia, 100 U.S. 303 ( 1880), are three of the

many cases declaring it unconstitutional to exclude blacks systematically from

the jury rolls when the defendant is black. Swain v. Alabama, 380 U.S. 202

(1965), is one of the many cases declaring that it is not unconstitutional that no

blacks were in fact on the jury that tried the defendant.

32 See, e.g., Peters v. Kiff, 407 U.S. 493, 508-09 (Burger, C.J., dissenting).

598 UCLA LAW REVIEW [Vol. 24: 581

whites are not prejudiced against blacks, unless, perhaps, they

happen to live in an area where there is systematic exclusion ot

blacks from the jury rolls. Hence prejudice is the chief worry,

and a sectional, if not historical, one at that.

White prejudice against blacks is, I think, a problem, and not

just a sectional one. However, the existence or nonexistence of

prejudice against blacks does not go to the heart of the matter.

It is a worry, but it is not the chief worry. A black person may

not be able to get a fair trial from an all-white jury even though

the jurors are disposed to be fair and impartial, because the whites

may unknowingly bring into the jury box a view about a variety

of matters which affects in very fundamental respects the way they

will look at and assess the facts. Thus, for example, it is not, I

suspect, part of the experience of most white persons who serve

on juries that police often lie in their dealings with people and

the courts. Indeed, it is probably not part of their experience that

persons lie about serious matters except on rare occasions. And

they themselves tend to take truth telling very seriously. As a

result, white persons for whom these facts about police and lying

are a part of their social reality will have very great difficulty taking

seriously the possibility that the inculpatory testimony of a police

witness is a deliberate untruth. However, it may also be a

part of the social reality that many black persons, just because they

are black, have had encounters with the police in which the police

were at best indifferent to whether they, the police, were speaking

the truth. And even more black persons may have kMwn a

friend or a relative who has had such an experience. As a result,

a black juror would be more likely than his or her white counterpart

to approach skeptically the testimony of ostensibly neutral,

reliable witnesses such as police officers. The point is not that

all police officers lie; nor is the point that all whites always believe

everything police say, and blacks never do. The point is that because

the world we live in is the way it is, it is likely that whites

and blacks will on the whole be disposed to view the credibility

of police officers very differently. If so, the legal system’s election

to ignore this reality, and to regard as fair and above reproach

the common occurrence of all-white juries (and white judges)

passing on the guilt or innocence of black defendants is a decision

in fact to permit and to perpetuate a kind of institutional racism

within the law.33

33 I discuss this particular situation in somewhat more detail in Wasserstrom,

The University and the Case for Preferential Treatment, 13 AM. PHIL. Q.

165, 169-70 (1976). Mr. Justice Marshall expresses a view that I take to be

reasonaly close to mine in Peters v. Kiff, 407 U.S. 493 (1972). The case involved

the question whether a white defendant could challenge the systematic

1977] RACISM, SEXISM 599

The second type of institutional racism is what I will call “conceptual”

institutional racism. We have a variety of ways of thinking

about the legal system, and we have a variety of ways of thinking

within the legal system about certain problems. We use concepts.

Quite often without realizing it, the concepts used take for

granted certain objectionable aspects of racist ideology without our

being aware of it. The second Brown case (Brown II) provides an

example.34 There was a second Brown case because, having decided

that the existing system of racially segregated public education

was unconstitutional (Brown /),35 the Supreme Court gave

legitimacy to a second issue-the nature of the relief to be granted

-by treating it as a distinct question to be considered and decided

separately. That in itself was striking because in most cases, once

the Supreme Court has found unconstitutionality, there has been no

problem about relief (apart from questions of retroactivity): The

unconstitutional practices and acts are to cease. As is well known,

the Court in Brown II concluded that the desegregation of public

education had to proceed “with all deliberate speed.”30 The Court

said that there were “complexities arising from the transition to a

system of public education freed from racial discrimination.”37

More specifically, time might be necessary to carry out the ruling

because of

problems related to administration, arising from the physical

condition of the school plant, the school transportation

system personnel, revision of school districts and attendance

areas into compact units to achieve a system of determining

admission to the public school on a non-racial basis, and

exclusion of blacks from the jury rolls. Mr. Justice Marshall held that he could:

[W]e are unwilling to make the assumption that the exclusion of

Negroes has relevance only for issues involving race. When any large

and identifiable segment of the community is excluded from jury

service, the effect is to remove from the jury room qualities of human

nature and varieties of human experience, the range of which is unknown

and perhaps unknowable. It is not necessary to assume that

the excluded group will consistently vote as a class in order to

conclude, as we do, that its exclusion deprives the jury of a perspective

on human events that may have unsuspected importance in any case that

may be presented.

/d. at 503-04 (footnote omitted).

Given my analysis, I think any defendant is disadvantaged by the absence of

blacks from the jury, where, for instance, the testimony of a police officer is a

significant part of the prosecution case. Because police are more apt to lie

about black defendants, and because black jurors are more apt to be sensitive to

this possibility, black defendants are, I think, especially likely to be tried unfairly

by many all-white juries. What matters in terms of fairness is that blacks be

represented on particular juries; nonexclusion from the jury rolls is certainly not

obviously sufficient.

34 Brown v. Board of Educ., 349 U.S. 294 (1955).

35 Brown v. Board of Educ., 347 U.S. 483 (1954).

so 349 U.S. at 301.

37 l d. at 299.

600 UCLA LAW REVIEW [Vol. 24: 581

revision of local laws and regulations which may be necessary

in solving the foregoing problems. 38

Now, I do not know whether the Court believed what it said

in this passage, but it is a fantastic bit of nonsense that is, for my

purposes, most instructive. Why? Because there was nothing

complicated about most of the dual school systems of the southern

states. Many counties, especially the rural ones, had one high

school, typically called either “Booker T. Washington High

School” or “George Washington Carver High School,” where all

the black children in the county went; another school, often called

“Sidney Lanier High School” or “Robert E. Lee High School,” was

attended by all the white children in the county. There was nothing

difficult about deciding that-as of the day after the decision-

half of the children in the county, say all those who lived

in the southern part of the county, would go to Robert E. Lee

High School, and all those who lived in the northern half would

go to Booker T. Washington High School. Brown I could have

been implemented the day after the Court reached its decision.

But it was also true that the black schools throughout the South

were utterly wretched when compared to the white schools.

There never had been any system of separate but equal education.

In almost every measurable respect, the black schools were inferior.

One possibility is that, without being explicitly aware of it,

the members of the Supreme Court made use of some assumptions

that were a significant feature of the dominant racist ideology. If

the assumptions had been made explicit, the reasoning would have

gone something like this: Those black schools are wretched. We

cannot order white children to go to those schools, especially

when they have gone to better schools in the past. So while it

is unfair to deprive blacks, to make them go to these awful, segregated

schools, they will have to wait until the black schools either

are eliminated or are sufficiently improved so that there are good

schools for everybody to attend.

What seems to me to be most objectionable, and racist, about

Brown ll is the uncritical acceptance of the idea that during this

process of change, black schoolchildren would have to suffer by

continuing to attend inadequate schools. The Supreme Court’s

solution assumed that the correct way to deal with this problem

was to continue to have the black children go to their schools until

the black schools were brought up to par or eliminated. That is

a kind of conceptual racism in which the legal system accepts the

dominant racist ideology, which holds that the claims of black

children are worth less than the claims of white children in those

ss ld. at 300-01.

1977] RACISM, SEX ISM 601

cases in which conflict is inevitable. 80 It seems to me that any

minimally fair solution would have required that during the interim

process, if anybody had to go to an inadequate school, it

would have been the white children, since they were the ones who

had previously had the benefit of the good schools. But this is

simply not the way racial matters are thought about within the

dominant ideology.

A study of Brown II is instructive because it is a good illustration

of conceptual racism within the legal system. It also reflects

so The unusual character of Brown II was recognized by Mr. Justice Goldberg

in Watson v. City of Memphis, 373 U.S. 526 (1963):

Most importantly, of course, it must be recognized that even the

delay countenanced by Brown was a necessary, albeit significant, adaptation

of the usual principle that any deprivation of constitutional rights

calls for prompt rectification. The rights here asserted are, like all

such rights, present rights; they are not merely hopes to some future

enjoyment of some formalistic constitutional promise. The basic

guarantees of our Constitution are warrants for the here and now and,

unless there is an overwhelmingly compelling reason, they are to be

promptly fulfilled. The second Brown decision is but a narrowly drawn,

and carefully limited, qualification upon usual precepts of constitutional

adjudication . . . .

!d. at 532-33 (emphasis in original; footnote omitted). As I have indicated,

the problem with Brown II is that there was no “overwhelmingly compelling

reasonto delay. It might be a rgued though, that the Court deliberately opted for

“all deliberate speed” and all that meant about the dreary pace of desegregation

because it believed the country would not accept full, immediate implementation of

Brown I . If this was the reasoning, it is equally pernicious. It is sound, only

if the country is identified with white people; blacks were surely willing to accept

the immediate elimination of the system of racial segregation.

But someone might still say that the Court was just dealing sensibly with

the political realities. The white power structure would not have accepted

anything more drastic. Arguments such as these are developed at considerable

length by A. BICKEL, THE LEAST DANGEROUS BRANCH 247-54 ( 1962) . The

problem with this is twofold. First, what is deemed a drastic solution has

a lot to do with whether whites or blacks are being affected, and how. It

was and is thought to be drastic for force and the criminal law to be used against

whites to secure compliance with laws relating to segregation. It was and is

thought to be much less drastic to use force and the criminal law against blacks

who object vigorously and sometimes violently to the system of racial oppression.

The simple truth is that when the executive branch, as well as the judiciary,

thought about these issues it typically weighed the claims of whites very differently

from the claims of blacks. The history of the enforcement of civil rights by the

federa l government in the 1950‘s and early 1960’s is largely a history of the

consistent overvaluation of the claims and concerns of whites vis-a-vis blacks.

I have suggested some of the ways this was true of the Civil Rights Division of

the Department of Justice. See Wasserstrom, Book Review, 33 U. CHI. L. REV.

406, 409-13 ( I 966); Wasserstrom, Postscript: Lawyers and Revolution, 30 U.

PITT. L. REV. 125, 131 (1968).

Second, whether the decision would have been “accepted” is in large measure

a function of what the United States government would have been prepared to do

to get the decision implemented. During this same era things that were viewed

as absolutely unacceptable or as not feas ible suddenly became acceptable and

feasible without any substantial change in material circumstances, e.g., the passage

of the 1965 Voting Rights Act, 42 U.S.C. §§ 1973 et seq. (1970). It mysteriously

became acceptable to the Congress, enforceable by the government and accepted

by the South when Reverend Reeb and Mrs. Liuzzo were murdered during the

602 UCLA LAW REVIEW [Vol. 24: 581

another kind of conceptual racism-conceptual racism about the

system. Brown I and II typically are thought of by our culture,

and especially by our educational institutions, as representing one

of the high points in the legal system’s fight against racism. The

dominant way of thinking about the desegregation cases is that

the legal system was functioning at its very best. Yet, as I have

indicated, there are important respects in which the legal system’s

response to the then existing system of racially segregated education

was defective and hence should hardly be taken as a model

of the just, institutional way of dealing with this problem of racial

oppression. But the fact that we have, as well as inculcate, these

attitudes of effusive praise toward Brown I and II and its progeny

reveals a kind of persistent conceptual racism in talk about the

character of the legal system, and what constitutes the right way

to have dealt with the social reality of American racial oppression

of black people. 40

In theory, the foregoing analytic scheme can be applied as

readily to the social realities of sexual oppression as to racism.

Given an understanding of the social realities in respect to sexthe

ways in which the system of patriarchy inequitably distributes

important benefits and burdens for the benefit of

males, and the ideology which is a part of that patriarchal

system and supportive of it-one can examine the different types

of sexism that exist within the legal system. In practice the task

is more difficult because we are inclined to take as appropriate

even overt instances of sexist laws, e.g., that it is appropriately

a part of the definition of rape that a man cannot rape his wife.41

The task is also more difficult because sexism is, as I have suggested,

a “deeper” phenomenon than racism.42 As a result, there

is less awareness of the significance of much of the social reality,

e.g., that the language we use to talk about the world and ourselves

has embedded within it ideological assumptions and preferences

time of the Selma march, and former President Johnson declared his determination

to see the law enacted and enforced.

40 A discussion of some of these same kinds of issues concerning ideology

can be found in Thalberg, Justifications for Institutional Racism, 5 PHIL. F. 243

(1973).

41 In California, rape is defined as “an act of sexual intercourse, accomplished

with a female not the wife of the perpetrator, under either of the following

circumstances …. CAL. PENAL CODE § 261 (West Supp. 1976) (emphasis

added).

42 For an example of a kind of analysis that is beginning to show some of

the ways in which the law builds upon and supports the patriarchal system of

marriage, see Johnston, Sex and Property: The Common Law Tradition, The

Law School Curriculum, and Developments Toward Equality, 47 N.Y.U. L. REv.

1033, 1071-89 (1972). Another very rich source is the recent casebook on sex

discrimination by B. BABCOCK, A. FREEDMAN, E. NORTON & S. Ross, SEX DIS·

CRIMINATION AND TilE LAw-CAUSES AND REMEDIES (1975).

1977] RACISM, SEXISM 603

that support the existing patriarchal system. 43 Cases of institutional

sexism will therefore be systematically harder to detect.

But these difficulties to one side, the mode of analysis seems to

me to be in principle equally applicable to sexism, although, as

I indicate in the next section on ideals, a complete account of

the sexism of the legal system necessarily awaits a determination of

what is the correct picture of the good society in respect to sexual

differences.

II. IDEALS

A second perspective is also important for an understanding

and analysis of racism and sexism. It is the perspective of the

ideal. Just as we can and must ask what is involved today in our

culture in being of one race or of one sex rather than the other,

and how individuals are in fact viewed and treated, we can also

ask different questions: What would the good or just society make

of race and sex, and to what degree, if at all, would racial and

sexual distinctions ever be taken into account? Indeed, it could

plausibly be argued that we could not have an adequate idea of

whether a society was racist or sexist unless we had some conception

of what a thoroughly nonracist or nonsexist society would

look Jike. This perspective is an extremely instructive as well as

an often neglected one. Comparatively little theoretical literature

dealing with either racism or sexism has concerned itself in a systematic

way with this perspective.44 Moreover, as I shall try to

demonstrate, it is on occasion introduced in an inappropriate context,

e.g., in discussions of the relevance of the biological differences

between males and females.

To understand more precisely what some of the possible

ideals are in respect to racial or sexual differentiation, it is necessary

to distinguish in a crude way among three levels or areas of

social and political arrangements and activities. 45 First, there is

the area of basic political rights and obligations, including the right

to vote and to travel and the obligation to pay taxes. Second,

there is the area of important, nongovernmental institutional

benefits and burdens. Examples are access to and employment

in the significant economic markets, the opportunity to acquire

and enjoy housing in the setting of one’s choice, the right of

43 See, e.g., R. LAKOFF, UNGUAOE AND WOMAN’S P LACE ( 1975); Baker,

“Pricks” and “Chicks”: A Plea for “Persons”, in PHil.OSOPHY AND SEX 45 (R.

Baker & F. Elliston eds. 1975) ; Moulton, Sex and Reference in id. at 34.

H One thorough and very valuable exploration of this and a number of the

other topics discussed in this section is Alison Jaggar’s On Sexual Equality, note 28

supra. The article also contains a very useful analysis of the views of a number

of other feminists who have dealt with this issue.

45 An analysis of the social realities of an existing society c3n also divide

things up into these three areas.

604 UCLA LAW REVIEW [Vol. 24: 581

persons who want to marry each other to do so, and the duties

(nonlegal as well as legal) that persons acquire in getting married.

Third, there is the area of individual, social interaction, including

such matters as whom one will have as friends, and what aesthetic

preferences one will cultivate and enjoy.

As to each of these three areas we can ask whether in a nonracist

society it would be thought appropriate ever to take the race

of the individuals into account. Thus, one picture of a nonracist

society is that which is captured by what I call the assimilationist

ideal: A nonracist society would be one in which the race of an

individual would be the functional equivalent of the eye color of

individuals in our society today.46 In our society no basic political

rights and obligations are determined on the basis of eye color.

No important institutional benefits and burdens are connected with

eye color. Indeed, except for the mildest sort of aesthetic preferences,

a person would be thought odd who even made private,

social decisions by taking eye color into account. And for reasons

that we could fairly readily state, we could explain why it would

be wrong to permit anything but the mildest, most trivial aesthetic

preference to turn on eye color. The reasons would concern the

irrelevance of eye color for any political or social institution, practice

or arrangement. It would, of course, be equally odd for a

person to say that while he or she looked blue-eyed, he or she regarded

himself or herself as really a brown-eyed person. That

is, because eye color functions differently in our culture than does

race or sex, there is no analogue in respect to eye color to passing

or transsexuality. According to the assirnilationist ideal, a nonracist

society would be one in which an individual’s race was of

no more significance in any of these three areas than is eye color

today.

The assimilationist ideal is not, however, the only possible,

plausible ideal. There are two others that are closely related, but

distinguishable. One is the ideal of diversity; the other, the ideal

of tolerance. Both can be understood by considering how religion,

rather than eye color, tends to be thought about in our culture.

According to the ideal of diversity, heterodoxy in respect to religious

belief and practice is regarded as a positive good. In this view

there would be a loss-it would be a worse society-were everyone

to be a member of the same religion. According to the other

view, the ideal of tolerance, heterodoxy in respect to religious be-

46 There is a danger in calling this ideal the “assimilationist” ideal. That

term suggests the idea of incorporating oneself, one’s values, and the like into the

dominant group and its practices and values. I want to make it clear that no

part of that idea is meant to be captured by my use of this term. Mine is a

stipulative definition.

1977] RACISM, SEXISM 605

lief and practice would be seen more as a necessary, lesser evil.

In this view there is nothing intrinsically better about diversity in

respect to religion, but the evils of achieving anything like homogeneity

far outweigh the possible benefits.

Now, whatever differences there might be between the ideals

of diversity and tolerance, the similarities are more striking. Under

neither ideal would it be thought that the allocation of basic

political rights and duties should take an individual’s religion into

account. We would want equalitarianism or nondiscrimination

even in respect to most important institutional benefits and burdens

for example, access to employment in the desirable vocations.

Nonetheless, on both views it would be deemed appropriate

to have some institutions (typically those which are connected

in an intimate way with these religions) which do in a variety of

ways take the religion of members of the society into account.

For example, it might be thought permissible and appropriate for

members of a religious group to join together in collective associations

which have religious, educational and social dimensions.

And on the individual, interpersonal level, it might be thought unobjectionable,

or on the diversity view, even admirable, were persons

to select their associates, friends, and mates on the basis of

their religious orientation. So there are two possible and plausible

ideals of what the good society would look like in respect to religion

in which religious differences would be to some degree maintained

because the variety of religions was seen either as a

valuable feature of the society, or as one to be tolerated. The

picture is a more complex, less easily describable one than that of

·the assimilationist ideal.

The point of all this is its relevance to the case of sexism.

One central and difficult question is what the ideal society would

look like in respect to sex. The assimilationist ideal does not

seem to be as readily plausible and obviously attractive here as

it is in the case of race. Many persons invoke the possible realization

of the assimilationist ideal as a reason for rejecting the equal

rights amendment and indeed the idea of women’s liberation itself.

My view is that the assimilationist ideal may be just as good

and just as important an ideal in respect to sex as it is in respect

to race. 47 But many persons think there are good reasons why

47 Jaggar describes something fairly close to the assimilationist view in this

way:

The traditional feminist answer to th is question [of what the features

of a nonsexist society would be] has been that a sexually egalitarian

society is one in which virtually no public recognition is given to the

fact that there is a physiological sex difference between persons. This

is not to say that the different reproductive function of each sex should

be unacknowledged in such a society nor that there should be no phy606

UCLA LAW REVIEW [Vol. 24: 581

an assimilationist society in respect to sex would not be desirable.

One reason for their view might be that to make the assimilationist

ideal a reality in respect to sex would involve more profound and

fundamental revisions of our institutions and our attitudes than

would be the case in respect to race. It is certainly true that on

the institutional level we would have to alter radically our practices

concerning the family and marriage. If a nonsexist society is a

society in which one’s sex is no more significant than eye color

in our society today, then laws which require the persons who are

being married to be of different sexes would clearly be sexist laws.

Insofar as they are based upon the desirability of unifying the distinctive

features of one male and one female, laws and institutions

which conceive of the nuclear family as ideally composed of two

and only two adults should also be thought of as anachronistic as

well as sexist laws and institutions.

On the attitudinal and conceptual level, the assirnilationist

ideal would require the eradication of all sex-role differentiation.

It would never teach about the inevitable or essential attributes

of masculinity or femininity; it would never encourage or discourage

the ideas of sisterhood or brotherhood; and it would be unintelligible

to talk about the virtues as well as disabilities of being a woman

or a man. Were sex like eye color, these things would make

no sense. A nonsexist world might conceivably tolerate both

homosexuality and heterosexuality (as peculiar kinds of personal

erotic preference), but any kind of sexually exclusive preference

would be either as anomalous or as statistically fortuitous as is

a sexual preference connected with eye color in our society today.

Just as the normal, typical adult is virtually oblivious to the eye

color of other persons for all major interpersonal relationships, so

the normal, typical adult in this kind of nonsexist society would

be indifferent to the sexual, physiological differences of other persons

for all interpersonal relationships. Bisexuality, not heterosexuality

or homosexuality, would be the norm for intimate, sexual

relationships in the ideal society that was assimilationist in respect

to sex.

All of this seems to me to be worth talking about because

unless and until we are clear about issues such as these we cannot

be wholly certain about whether, from the perspective of the ideal,

sicians specializing in female and male complaints, etc. But it is to

say that, except in this sort of context, the question whether someone is

female or male should have no signi fic~ce.

. . . In the mainstream tradition, the non-sexist society is one

which is totally integrated sexually, one in which sexual differences have

ceased to be a matter of public concern.

Jaggar, supra note 28, at 276-77. .

1977] RACISM, SEXISM 607

some of the institutions in our own culture are or are not sexist.

We know that racially segregated bathrooms are racist. We

know that laws that prohibit persons of different races from

marrying are racist. But throughout our society we have sexually

segregated bathrooms, and we have laws which prohibit individuals

of the same sex from marrying. As I have argued above,48

from the perspective of the existing social reality there are important

ways to distinguish the racial from the sexual cases and to criticize

both practices. But that still leaves open the question of

whether in the good society these sexual distinctions, or others,

would be thought worth preserving either because they were meritorious,

or at least to be tolerated because they were necessary.

As I have indicated, it may be that the problem is with the

assimilationist ideal. It may be that in respect to sex (and conceivably,

even in respect to race) something more like either of

the ideals in respect to religion-pluralistic ideals founded on di··

versity or tolerance-is the right one. But the problem thenand

it is a very substantial one-is to specify with a good deal

of precision and care what that ideal really comes to. Which

legal, institutional and personal differentiations are permissible

and which are not? Which attitudes and beliefs concerning sexual

identification and difference are properly introduced and maintained

and which are not? Part, but by no means all, of the attractiveness

of the assimilationist ideal is its clarity and simplicity.

In the good society of the assimilationist sort we would be able

to tell easily and unequivocally whether any law, practice or attitude

was in any respect either racist or sexist. Part, but by no

means all, of the unattractiveness of any pluralistic ideal is that

it makes the question of what is racist or sexist a much more difficult

and complicated one to answer. But although simplicity and

lack of ambiguity may be virtues, they are not the only virtues

to be taken into account in deciding among competing ideals. We

quite appropriately take other considerations to be relevant to an

assessment of the value and worth of alternative nonracist and

nonsexist societies.

Nor do I even mean to suggest that all persons who reject

the assimilationist ideal in respect to sex would necessarily embrace

either something like the ideal of tolerance or the ideal of

diversity. Some persons might think the right ideal was one in

which substantially greater sexual differentiation and sex-role

identification was retained than would be the case under either

of these conceptions. Thus, someone might believe that the good

society was, perhaps, essentially like the one they think we now

have in respect to sex: equality of political rights, such as the right

48 See pp. 584-94 supra.

608 UCLA LAW REVIEW [Vol. 24: 581

to vote, but all of the sexual differentiation in both legal and nonlegal

institutions that is characteristic of the way in which our society

has been and still is ordered. And someone might also believe

that the usual ideological justifications for these arrangements

are the correct and appropriate ones. 49 This could, of

course, be regarded as a version of the ideal of diversity, with the

emphasis upon the extensive character of the institutional and personal

difference connected with sexual identity. Whether it is a

kind of ideal of diversity or a different ideal altogether turns, I

think, upon two things: first, how pervasive the sexual differentiation

is; second, whether the ideal contains a conception of the

appropriateness of significant institutional and interpersonal inequality,

e.g., that the woman’s job is in large measure to serve

and be dominated by the male. The more this latter feature is

present, the clearer the case for regarding this as a distinctively

different ideal.

The question of whether something is a plausible and attractive

ideal turns in part on the nature of the empirical world. If

it is true, for example, that race· is not only a socially significant

category in our culture but also largely a socially created one, then

many ostensible objections to the assimilationist ideal appear to

49 Thus, for example, a column appeared a few years ago in the Waslzi11glon

Star concerning the decision of the Cosmos Club to continue to refuse to permit

women to be members. The author of the column (and a member of the club)

defended the decision on the ground that women appropriately had a different

status in the society. Their true distinction was to be achieved by being faithful

spouses and devoted mothers. The column closed with this paragraph:

In these days of broken homes, derision of marriage, reluctance to

bear children, contempt for the institution of the family-a phase in

our national life when it seems more honorable to be a policewoman,

or a model, or an accountant than to be a wife or motherthere is a

need to reassert a traditional scale of values in which the vocation of

homemaker is as honorable and distinguished as any in political or

professional life. Such women, as wives and widows of members, now

enjoy in the club the privileges of their status, which includes [sic] their

own drawing rooms, and it is of interest that they have been among the

most outspoken opponents of the proposed changes in club stmcture.

Groseclose, Now-Shall We Joi11tlze Ladies?, Washington Star, Mar. 13, 1975.

The same view may be held by Senator Daniel Moynihan. I t is his view,

apparently, that the United States government ought to work primarily to

strengthen the institution of the family. Moynihan is quoted as saying:

If the family is strong, the economy will be productive. If the family

is strong, law will be respected and crime will decrease. If the family

is strong, the welfare rolls will shrink. . . . All this is true, and its

truth has been confirmed and reconfirmed by the evidence of history,

of social science, of direct observation, and of simple common sense.

Buckley, The Main Eve111 East, N.Y. Times, Oct. 31, 1976, § 6 (Magazine), at 16,

57.

For the reasons that I give below, see pp. 609-15 infra, I think any version

of this ideal is seriously flawed. But it is one that is certainly much more widely

held in respect to sex than is a comparable one held today in respect to

race.

1977] RACISM, SEXISM 609

disappear immediately. What I mean is this: It is obvious that

we could formulate and use some sort of a crude, incredibly imprecise

physiological concept of race. In this sense we could even

say that race is a naturally occurring rather than a socially created

feature of the world. There are diverse skin colors and related

physiological characteristics distributed among human beings.

But the fact is that except for skin hue and the related physiological

characteristics, race is a socially created category. And skin

hue, as I have shown, is neither a necessary nor a sufficient condition

for being classified as black in our culture. 50 Race as a

naturally occurring characteristic is also a socially irrelevant category.

There do not in fact appear to be any characteristics that

are part of this natural concept of race and that are in any plausible

way even relevant to the appropriate distribution of any political,

institutional, or interpersonal concerns in the good society.

Because in this sense race is like eye color, there is no plausible

case to be made on this ground against the assimilationist ideal.tn

There is, of course, the social reality of race. In creating

and tolerating a society in which race matters, we must recognize

that we have created a vastly more complex concept of race which

includes what might be called the idea of ethnicity as well-a set

of attitudes, traditions, beliefs, etc., which the society has made

part of what it means to be of a race. It may be, therefore, that

one could argue that a form of the pluralist ideal ought to be preserved

in respect to race, in the socially created sense, for reasons

similar to those that might be offered in support of the desirability

of some version of the pluralist ideal in respect to religion. As

I have indicated, I am skeptical, but for the purposes of this essay

it can well be left an open question.

Despite appearances, the case of sex is more like that of race

than is often thought. What opponents of assimilationism seize

upon is that sexual difference appears to be a naturally occurring

category of obvious and inevitable social relevance in a way, or

to a degree, which race is not. The problems with this way of

thinking are twofold. To begin with, an analysis of the social realities

reveals that it is the socially created sexual differences which

tend in fact to matter the most. It is sex-role differentiation, not

GO See note 9 supra.

Gl This is not to deny that certain people believe that race is linked with

characteristics that prima facie arc relevant. Such beliefs persist. They arc,

however, unjustified by the evidence. See, e.g., Block & Dworkin, IQ, Heritability

and Inequality (pts. 1-2), 3 PHIL. & Pun. AFF. 331 , 4 id. 40 ( 1974). More to

the point, even if it were true that such a linkage existed, none of the characte

ristics suggested would require that political or social institutions, or interpersonal

relationships, would have to be structured in a certain way.

610 UCLA LAW REVIEW [Vol. 24: 581

gender per se, 52 that makes men and women as different as they

are from each other, and it is sex-role differences which are invoked

to justify most sexual differentiation at any of the levels of

society.53

More importantly, even if naturally occurring sexual differences

were of such a nature that they were of obvious prima facie

social relevance, this would by no means settle the question of

whether in the good society sex should or should not be as minimally

significant as eye color. Even though there are biological

differences between men and women in nature, this fact does not

determine the question of what the good society can and should

make of these differences. I have difficulty understanding why

so many persons seem to think that it does settle the question adversely

to anything like the assimilationist ideal. They might

think it does settle the question for two different reasons. In the

first place, they might think the differences are of such a character

that they substantially affect what would be possible within a good

52 The term “gender” may be used in a number of different senses. I use

it to refer to those anatomical, physiological, and other differences (if any) that

a re naturally occurring in the sense described above. Some persons refer to

these differences as sex differences,” but that seems to me confusing. In any

event, I am giving a stipulative definition to “gender.

5 :1 See, e.g., authorities cited in note 14 supra; M. MEAD, SEX AND TEMPERAMENT

IN THREE PRIMITIVE SoCLETIES (11935):

These three situations [the cultures of the Anapesh, the Mundugumor,

and the Tchambuli] suggest, then, a very definite conclusion. If

those temperamental attitudes which we have traditionally regarded as

feminine-such as passivity, responsiveness, and a willingness to cherish

children–can so easily be set up as the masculine pattern in one tribe,

and in another to be outlawed for the majority of women as well as for

the majority of men, we no longer have any basis for regarding such

aspects of behaviour as sexlinked ….

. . . We are forced to conclude that human nature is almost unbelievably

malleable, responding accurately and contrastingly to contrasting

cultural conditions. . . . Standardized personality differences

between the sexes are of this order, cultural creations to which each

generation, male and female is trained to conform.

/d. at 190-91.

A somewhat different view is expressed in J. SHERMAN, ON TilE PSYCHOLOGY

OF WoMEN ( 1971 ). There, the author suggests that there are naturaldifferences

of a psychological sort between men and women, the chief ones being aggressiveness

and strength of sex drive. See id. at 238. However, even if she is correct

as to these biologically based differences, this does little to establish what the

good society should look like. See pp. 611-15 infra.

Almost certain ly the most complete discussion of this topic is E. MACOBY &

C. JACKLIN, THE PSYCHOLOGY OF SEX DIFFERENCES ( 1974). The authors conclude

that the sex differences which are, in their words, “fairly well established,”

are: ( I ) that girls have greater verbal ability than boys; (2) that boys excel in

visual-spacial ability; (3) that boys excel in mathematical ability; and ( 4) that

males are aggressive. !d. at 351-52. They conclude, in respect to the etiology

of these psychological sex differences, that there appears to be a biologica l

component to the greater visualspacial ability of males and to their greater

aggressiveness. /d. at 360.

1977] RACISM, SEXISM 611

society of human persons. Just as the fact that humans are mortal

necessarily limits the features of any possible good society, so, they

might argue, the fact that males and females are physiologicaliy

different limits the features of any possible good society.

In the second place, they might think the differences are of

such a character that they are relevant to the question of what

would be desirable in the good society. That is to say, they might

not think that the differences determine to a substantial degree

what is possible, but that the differences ought to be taken into

account in any rational construction of an ideal social existence.

The second reason seems to me to be a good deal more

plausible than the first. For there appear to be very few, if any,

respects in which the ineradicable, naturally occurring differences

between males and females must be taken into account. The industrial

revolution has certainly made any of the general differences

in strength between the sexes capable of being ignored by

the good society in virtually all activities. 54 And it is sex-role acculturation,

not biology, that mistakenly leads many persons to the

view that women are both naturally and necessarily better suited

than men to be assigned the primary responsibilities of child rearing.

Indeed, the only fact that seems required to be taken into

account is the fact that reproduction of the human species requires

that the fetus develop in utero for a period of months. Sexual

r.4 As Sherman observes,

Each sex has its own special physical assets and liabilities. The principal

female liability of less muscular strength is not ordinarily a handicap

in a civilized, mechanized, society. . . . There is nothing in the biological

evidence to prevent women from taking a role of equality in a

civilized society.

J . SHERMAN, supra note 53, at I I.

There are, of course, some activities that would be sexually di fferentiated in

the assimilationist society; namely, those that were specifically directed toward,

say, measuring unaided physical strength. Thus, I think it likely that even in

this ideal society, weight lifting contests and boxing matches would in fact be

dominated, perhaps exclusively so, by men. But it is hard to find any significant

activities or institutions that are analogous. And it is not clear that such insignificant

activities would be thought worth continuing, especially since sports

function in existing patriarchal societies to help maintain the dominance of males.

See K. MILLE’IT, supra note 13, at 48-49.

It is possible that there are some nontrivial activities or occupations that

depend sufficiently directly upon unaided physical strength that most if not a ll

women would be excluded. Perhaps being a lifeguard at the ocean is an example.

Even here, though, it would be important to see whether the way lifeguarding

had traditionally been done could be changed to render such physical

strength unimportant. If it could be changed, then the question would simply be

one of whether the increased cost (or loss of efficiency) was worth the gain in

terms of equality and the avoidance of sex-role differentiation. In a nonpatriarchal

society very different from ours, where sex was not a dominant social

category, the argument from effi ciency might well prevail. What is important,

once again, is to see how infrequent and peripheral such occupational cases are.

612 UCLA LAW REVIEW [Vol. 24: 581

intercourse is not necessary, for artificial insemination is available.

Neither marriage nor the family is required for conception or child

rearing. Given the present state of medical knowledge and the natural

realities of female pregnancy, it is difficult to see why any

important institutional or interpersonal arrangements must take

the existing gender difference of in utero pregnancy into account.

But, as I have said, this is still to leave it a wholly open question

to what degree the good society ought to build upon any ineradicable

gender differences to construct institutions which would

maintain a substantial degree of sexual differentiation. The arguments

are typically far less persuasive for doing so than appears

upon the initial statement of this possibility. Someone might argue

that the fact of menstruation, for instance, could be used as

a premise upon which to predicate different social roles for females

than for males. But this could only plausibly be proposed

if two things were true: first, that menstruation would be debilitating

to women and hence relevant to social role even in a culture

which did not teach women to view menstruation as a sign

of uncleanliness or as a curse;55 and second, that the way in which

menstruation necessarily affected some or all women was in fact

related in an important way to the role in question. But even

if both of these were true, it would still be an open question

whether any sexual differentiation ought to be built upon these

facts. The society could still elect to develop institutions that

” 5 See, e.g., Paige, Women Learn to Sing the Menstrual Blues, in THE FEMALE

EXPERIENCE 17 (C. Tavis ed. 1973 ).

I have come to believe that the raging hormones” theory of

menstrual distress simply isn’t adequate. All women have the raging

hormones, but not all women have menstrual symptoms, nor do they

have the same symptoms for the same reasons. Nor do I agree with the

raging neurosis” theory, which argues that women who have menstrual

symptoms are merely whining neurotics, who need only a kind pat on

the head to cure their problems.

We must instead consider the problem from the perspective of

women’s subordinate social position, and of the cultural ideology that

so na rrowly defines the behaviors and emotions that are appropriately

“feminine.” Women have perfectly good reasons to react emotionally

to reproductive events. Menstruation, pregnancy and childbirth-so

sacred, yet so unclean-are the woman‘s primary avenues of achievement

and self-expression. Her reproductive abilities define her femininity;

other routes to success are only second-best in this society ….

. . . My current research on a sample of 114 societies around the

world indicates that ritual observances and taboos about menstruation

are a method of controlling women and their fertility. Men apparently

use such rituals, along with those surrounding pregnancy and childbirth,

to assert their claims to women and their child ren.

. . . The hormone theory isn’t giving us much mileage, and it’s

time to tum it in for a better model, one that looks to our beliefs about

menstruation and women. It is no mere coincidence tha t women get

the blue meanies a long with an event they consider embarrassing, unclean

and a curse.

/ d. at 21.

1977] RACISM, SEXISM 613

would nullify the effect of the natural differences. And suppose,

for example, what seems implausible-that some or all women

will not be able to perform a particular task while menstruating,

e.g., guard a border. It would be easy enough, if the society

wanted to, to arrange for substitute guards for the women who

were incapacitated. We know that persons are not good guards

when they are sleepy, and we make arrangements so that persons

alternate guard duty to avoid fatigue. The same could be done

for menstruating women, even given these implausibly strong assumptions

about menstruation. At the risk of belaboring the obvious,

what I think it important to see is that the case against the

assimilationist idealif it is to be a good one-must rest on arguments

concerned to show why some other ideal would be preferable;

it cannot plausibly rest on the claim that it is either necessary

or inevitable.

There is, however, at least one more argument based upon

nature, or at least the “natural,” that is worth mentioning. Someone

might argue that significant sex-role differentiation is natural

not in the sense that it is biologically determined but only in the

sense that it is a virtually universal phenomenon in human culture.

By itself, this claim of virtual universality, even if accurate, does

not directly establish anything about the desirability or undesirability

of any particular ideal. But it can be made into an argument

by the addition of the proposition that where there is a virtually

universal social practice, there is probably some good or important

purpose served by the practice. Hence, given the fact of

sex-role differentiation in all, or almost all, cultures, we have some

reason to think that substantial sex-role differentiation serves

some important purpose for and in human society.

This is an argument, but I see no reason to be impressed

by it. The premise which turns the fact of sex-role differentiation

into any kind of a strong reason for sex-role differentiation is the

premise of conservatism. And it is no more convincing here than

elsewhere. There are any number of practices that are typical

and yet upon reflection seem without significant social purpose.

Slavery was once such a practice; war perhaps still is.

More to the point, perhaps, the concept of “purpose” is ambiguous.

It can mean in a descriptive sense “plays some role”

or “is causally relevant.” Or it can mean in a prescriptive sense

“does something desirable” or “has some useful function.If

“purpose” is used prescriptively in the conservative premise, then

there is no reason to think that premise is true.

To put it another way, the question is whether it is desirable

to have a society in which sex-role differences are to be retained

614 UCLA LAW REVIEW [Vol. 24: 581

at all. The straightforward way to think about tha~ question is

to ask what would be good and what would be bad about a society

in which sex functioned like eye color does in our society. We

can imagine what such a society would look like and how it would

work. It is hard to see how our thinking is substantially advanced

by reference to what has typically or always been the case. If

it is true, as I think it is, that the sex-role differentiated societies

we have had so far have.tended to concentrate power in the hands

of males, have ~eveloped institutions and ideologies that have perpetuated

that concentration and have restricted and prevented women

from living the kinds of lives that persons ought to be able to

live for themselves, then this says far more about what may be

wrong with any nonassimilationist ideal than does the conservative

premise say what may be right about any nonassimilationist ideal.

Nor is this all that can be said in favor of the assimilationist

ideal. For it seems to me that the strongest affirmative moral argument

on its behalf is that it provides for a kind of individual

autonomy that a nonassimilationist society cannot attain. Any nonassimilationist

society will have sex roles. Any nonassimilationist

society will have some institutions that distinguish between individuals

by virtue of their gender, and any such society will necessarily

teach the desirability of doing so. Any substantially nonassimilationist

society will make on~·s sexual identity an important characteristic,

so that there are substantial psychological, role, and status

differences between persons who are males and those who are females.

Even if these could be attained without systemic dominance

of one sex over the other, they would, I think, be objectionable on

the ground that they necessarily impaired an individual’s ability to

develop his or her own characteristics, talents and capacities to the

fullest extent to which he or she might desire. Sex roles, and all

that accompany them, necessarily impose limits-restrictions on

what one can do, be or become. As such, they are, I think, at

least prima facie wrong.

To some degree, all role-differentiated living is restrictive in

this sense. Perhaps, therefore, all role-differentiation in society

is to some degree troublesome, and perhaps all strongly role-differentiated

societies are objectionable. But the case against sexual

differentiation need not rest upon this more controversial

point. For one thing that distinguishes sex roles from many other

roles is that they are wholly involuntarily assumed. One has no

choice whatsoever about whether one shall be born a male or female.

And if it is a consequence of one’s being born a male or

a female that one’s subsequent emotional, intellectual, and material

development will be substantially controlled by this fact, then

substantial, permanent, and involuntarily assumed restraints have

1977] RACISM, SEXISM 615

been imposed on the most central factors concerning the way one

will shape and live one’s life.56 The point to be emphasized is

that this would necessarily be the case, even in the unlikely event

that substantial sexual differentiation could be maintained without

one sex or the other becoming dominant and developing institutions

and an ideology to support that dominance.

I do not believe that all I have said in this section shows in

any conclusive fashion the desirability of the assimilationist ideal in respect .to sex. I have tried to show why some typical argum:

ents ag~i~.st . the ~ssiroihitionist ide~l are not persuasive, 57 and

why some .of the central ones. in support of that ideal are persuasive.

But t have not provided a .complete ac.count, or a complete

analysis. At a. minimum; .What I have shown is how thinking about

this topic ought , to proceed,. _and what kinds of arguments need

to be marshalled and. considered before a serious and informed

discussion of altern.a tive co. nceptions . of a nonsexist society can

even take place. Once .assembled, these arguments need to be

individually and carefi.llly assessed before any final, reflective

s;hoke . among th~ competing ideals can be made. There does,

however, seem to me to b.e a strong presumptive case for something

very close to, if not identical with, the assimilationist ideal.

Ill. INSTRUMENTALITIES

the instrurrientai perspective does not require much theoretica1

atterition beyotid what has already been said. It is concerned

with the question of what would be the best way to move

from the social realities to the ideal. The most salient considerations

are, therefore, empirical ones–although of a complex sort.

Affirmative action programs, even those which require explicit

racial and sexual minimum quotas, are most plausibly assessed

from within tpis perspective. 58 If the social reality is one

5G One article that explo.res this point in some det!\il is Hill, Self-Determination

and Autonomy, in ToDAY’s MoRAL P.ROBLEMS 171 (Wasserstrom ed.

1975). See also Jaggar, supra note 28, at 289-9 1.

57 Still other arguments against something like the assimilationist ideal and

in favor of ~omething like the idea of diversity are considered by Jaggar and

shown by her to be unpersuasive. See ~aggar, S/!pra nQte 28, at 28 191.

58 Although ostensibly empirical, the q1.1estion of whether and to what

extent affirmative action programs “workhas a s1.1bstantial nonempirical component.

T here are many variables that can plausibly be taken into account, and

many differing weights to be assigned to these variables. Consequently, how

one marshalls and assesses the “evidence” concerning which programs “work

and which do not, has at least as much to do with whether one believes that the

programs are or are not justifiable on other grounds as it does with a disinterested

marshalling of the “facts.” See, e.g., T. SOWELL, AFFIRMATIVE ACTION RECONSIDERED

34-40 (1975); N. GLAZER, AFFIRMATIVE DISCRIMINATION: ETHNIC INEQUALITY

AND PUBLIC POLICY (1975). This a lso is a feature of Mr. Justice

Mosk’s analysis where he asserts, for example, that “[t]he overemphasis upon

616 UCLA LAW REVIEW [Vol. 24: 581

of racial and sexual oppression-as I think it is-and if, for example,

the most defensible picture of a nonracist, nonsexist society

is the one captured by the assirnilationist ideal, then the chief and

perhaps only question to be asked of such programs is whether

they are well suited to bring about movement from the existing

state of affairs to a closer approximation of the assimilationist

ideal. 50 If it turns out, for example, that explicit racial quotas will

in fact exacerbate racial prejudice and hostility, 60 thereby making

it harder rather than easier to achieve an assimilationist society,

that is a reason which counts against the instrumental desirability

of racial quotas. This would not settle the matter, of course, for

there might also be respects in which racial quotas would advance

the coming of the assimilationist society, e.g., by redistributing

wealth and positions of power and authority to blacks, thereby

creating previously unavailable role models, and by putting per~

sons with different perspectives and interests in a position more

directly to influence the course of social change.

But persons might be unhappy with this way of thinking

about affirmative action-and especially about quotas. They

might have three different but related objections. The first objection

would be that there are more questions to be asked about

means or instruments than whether they will work to bring about

a certain end. In particular, there is also the question of the way

they will work as means to bring about the end. Some means

may be morally objectionable as means, no matter how noble or

desirable the end. That is the good sense in the slogan: The

ends do not justify the means.

I certainly agree with this general point. It is the application

to particular cases, for example this one, that vitiates the force of

the objection. Indeed, given the way I have formulated the instrumental

perspective, I have left a good deal of room for the

moral assessment of means to be built in. That is to say, I have

race as a criterion will undoubtedly be counterproductive.” Bakke v. Regents of

the Univ. of Cal., 18 Cal. 3d 34, 62, 553 P.2d 1152, 1171, 132 Cal. Rptr. 680,

699 (1976) (emphasis added), cert. granted, 45 U.S.L.W. 3437 (U.S. Dec. 14,

1976) (No. 76-81 I) .

The general point is related to my discussion of Brown II, note 39 supra.

A tremendous amount docs turn in this area on who defines the nature o[

the problem and how the problem gets defined. My own analysis, to the degree

to which it has endeavored to be empirical is, of course, subject to this same

potential distortion.

50 It is here that an understanding of the causes of the position of blacks

and women is most important. Such an understanding is crucial to an ability to

make the kinds of changes and interventions that will successfully make real and

lasting differences in the status quo. See note 7 & accompanying text supra.

60 See Bakke v. Regents of the Univ. of Cal., 18 Cal. 3d 34, 62, 553 P.2d

1152, 117 I, 132 Cal. Rptr. 680, 699 (1976 ), cert. granted, 45 U.S.L.W. 3437

(U.S. Dec. 14, 1976) (No. 76-811).

1977] RACISM, SEXISM 617

described the question as one of the instrumental desirability,”

not just the “efficaciousness” in any narrow sense, of the means

that are selected.

The second objection is rather more sophisticated. Someone

might say something like this: it is just wrong in principle ever

to take an individual’s race or sex into account. 01 Persons just

have a right never to have race or sex considered. No reasons

need be given; we just know they have that right. This is a common

way of talking today in moral philosophy,02 but I find nothing

persuasive or attractive about it. I do not know that persons have

such a right. I do not “see” it. Instead, I think I can give and

have given reasons in my discussion of the social realities as well

as my discussion of ideals for why they might be said to have

rights not to be treated in certain ways. That is to say, I have

tried to show something of what was wrong about the way blacks

and women were and are treated in our culture. 03 I have not simply

proclaimed the existence of a right.

Another form of this objection is more convincing. The opponent

of quotas and affirmative action programs might argue that

any proponent of them is guilty of intellectual inconsistency, if not

racism or sexism. At times past, employers, universities, and

many social institutions did have racial or sexual quotas, when they

did not practice overt racial or sexual exclusion, and it was clear

that these quotas were pernicious. What is more, many of those

who were most concerned to bring about the eradication of those

racial quotas are now untroubled by the new programs which reinstitute

them. And this is just a terrible sort of intellectual inconsistency

which at worst panders to the fashion of the present moment

and at best replaces intellectual honesty and integrity with

understandable but misguided sympathy. The assimilationist

ideal requires ignoring race and sex as distinguishing features of

people.

Such an argument is a useful means by which to bring out

the way in which the analysis I am proposing can respond. The

racial quotas and practices of racial exclusion that were an integral

part of the fabric of our culture, and which are still to some

degree a part of it, were pernicious. They were a grievous wrong

and it was and is important that all morally concerned individuals

work for their erad ication from our social universe. The racial

Gt See, e.g., the sources cited in note I supra.

02 For example, such an approach seems, at least at times, to underlie the

writings of R. NOZICK, ANARCHY, STATE AND UTOPIA (1974). .

63 I have also tried to discuss some of these matters, although not w1th

anything like complete success, in Wasserstrom, Rights, Humtm Rights, and Racial

Discrimination, 61 J. PHIL. 628 ( 1964) .

618 UCLA LAW REVIEW [Vol. 24: 581

. I

quofas that are a part of contemporary affirmative action pro:..

grams ar~, I think, commendable and right. But even if I am

mistaken about the latter, the point is that there ·is no inconsistency·

involved in holding both views. For even if cont<?mporary sc~emes

of racial quotas are wrong, they are wrong for reasons very different

from those that made quotas against blacks wrong.

As I have argued, 64 the f-undamental evil of programs that

discriminated against blacks or women· was that these programs

were a part of a larger social ·universe which systematically mainl

tained an unwarranted and unjust sche.~e which ccmc~ntrated

power, authority, and goods · in the hands · of white males. Pro~

grams which excluded or limited the access of bl!icks and women

into .these institllltions were wrongboth -because of the direct consequences

of these programs on -the individuals most affected and

because the system of racial and sexual superiority of which: they

were constituents wa.s ao immoral one ill that it severely and with– ·

out any adequate justification restricted ithe capaCities, autonomy,

and happiness of those .who were membersof the less favored

categories. l. I’ ,

Whatever may be wrong with ·today’s affirmative action pro..: ·

grams and quota systems, it should be clear that the evil, if any,

is not the same. Racial and sexual minorities do not constitute

the dominant social group. Nor is the conception of ·who is a fully

developed member of the moral and social community one of art

individual who is either female or black. Quotas which prefer

women or blacks do not add to the already relatively overabundant ·

supply of resources and opportunities at the disposal· of white

males. If racial quotas are· to be condemned or ·if affirmative ac.:.

tion programs are to be abapdoned, it ·should be because they will

not work well to achieve tQe desired result. It is not because they

seek either to perpetuate an unjust society or to realize a cbrrupt

ideal.

Still : a third version of this objection· might be thaf when used·

in affirmative action programs, race and sex are categories that

are too broad in scope. They include some personswho do not

have the ·appropriate characteristics and exclude some persons

who d~. .If affirmative action programs made race and· sex the

sole criteria of selection, this would certainly be a plausible objection,

although even here it is very important to see that the ob-‘

jection is no different in kind from that which applies to all legislation

and rules. For example, in restricting the franchise to those

who are eighteen and older, we exclude some who have all the

relevant qualification~ for voting .and we include some who lack

a4 See Part I supra.

1977] RACISM, SEXISM 619

them. The fit can never be precise. Affirmative action programs

almost always make race or sex a relevant condition, not a conclusive

one. As such, they function the way all other classificatory

schemes do. The defect, if there is one, is generic, and not peculiar

to programs such as these.

There is finally the third· objection: that affirmative action

programs are wrong because they take race and sex into account

rather ·than the only thing that mattersan individual’s qualifications.

Someone might argue that what is wrong with these programs

is that they deprive persons who are more qualified by bestowing

benefits on those who are less qualified in virtue of their

being either black odemale.

There are many things wrong with the objection based on

qualifications. Not the least of them is that we do not live in a

society in which there is even the serious pretense of a qualification

requirement for many jobs of substantial power and authority.

Would anyone claim that the persons who comprise the judiciary

are there because they are the most qualified lawyers or the most

qualified persons to be judges? Would anyone claim that Henry

Ford II is the head of the Ford Motor Company because he is

the most qualified person for the job? Or that the one hundred

men who are Senators are the most qualified persons to be Senators?

Part of what is wrong with even talking about qualifications

and merit is that the argument derives some of its force from the

erroneous notion that we would have a meritocracy were it not

for affirmative action. 65

But there is a theoretical difficulty as well, which cuts much

more deeply into the argument about qualifications. The argument

cannot be that the most qualified ought to be selected

because the most qualified will perform most efficiently, for

this instrumental approach was what the opponent of affirmative

action thought was wrong with taking the instrumental perspective

in the first place. To be at all persuasive, the argument

must be that those who are the most qualifed deserve to receive

the benefits (the job, the place in law school, etc.) because they

are the most qualified. And there is just no reason to think that

this is a correct premise. There is a logical gap in the inference

that the person who is most qualified to perform a task, e.g., be

G5 The point is a more general one than the few random examples suggest.

The more prestige, power, wealth or influence is attached to the job, the less

likely it is that there are specifiable qualifications that make it easy to determine

who in fact is the most qualified. There are, to be sure, minimum qualifications.

But these are satisfied by a large number of individuals. Moreover, for most of

these positions the notion simply does not exist that the most qualified individuals

from among this large class are the ones who deserve to be selected, e.g., the

dean of a college or the head of a federal age~cy. ·

620 UCLA LAW REVIEW [Vol. 24: 581

a good student, deserves to be admitted as a student. Of course,

those who deserve to be admitted should be admitted. But why

do the most qualified deserve anything? There is just no necessary

connection between academic merit (in the sense of qualification)

and deserving to be a member of a student body. Suppose,

for instance, that there is only one tennis court in the community.

Is it clear that the two best tennis players ought to be the ones

permitted to use it? Why not those who were there first? Or

those who will enjoy playing the most? Or those who are the

worst and therefore need the greatest opportunity to practice? Or

those who have the chance to play least frequently?

We might, of course, have a rule that says that the best tennis

players get to use the court before the others. Under such a rule,

the best players would deserve the court more than the poorer

ones. But that is just to push the inquiry back one stage. Is there

any reason to think that good tennis players are entitled to such

a rule? Indeed, the arguments that might be given for or against

such a rule are many and varied. And few if any of the arguments

that might support the rule would depend upon a connection between

ability and desert.

Someone might reply that the most able students deserve to

be admitted to the university because all of their earlier schooling

was a kind of competition, with university admission being the

prize awarded to the winners. They deserve to be admitted because

that is what the rule of the competition provides. In addition,

it would be unfair now to exclude them in favor of others,

given the reasonable expectations they developed about the way

in which their. industry and performance would be rewarded.

Minority admission programs, which inevitably prefer some who

are less qualified over some who are more qualified, all possess

this flaw.

There are several problems with this argument. The most

substantial of them is that it is an empirically implausible picture

of our social world. Most of what are regarded as the decisive

characteristics for higher education have a great deal to do with

things over which the individual has neither control nor responsibility:

such things as home environment, socioeconomic class of

parents, and, of course, the quality of the primary and secondary

schools attended. Since individuals do not deserve having had

any of these things vis-a-vis other individuals, they do not, for the

most part, deserve their qualifications. And since they do not deserve

their abilities they do not in any strong sense deserve to be

admitted because of their abilities.

To be sure, if there is a rule which connects, say, performance

at high school with admission to college, then there is a

1977] RACISM, SEXISM 621

weak sense in which those who do well at high school deserve,

for that reason alone, to be admitted to college. But then, as I

have said, the merits of this rule need to be explored and defended.

In addition, if persons have built up or relied upon their

reasonable expectations concerning performance and admission,

they have a claim to be admitted on this ground as well. But it

is certainly not obvious that these claims of desert are any stronger

or more compelling than competing claims based upon the needs

of or advantages to women or blacks. 66

Qualifications are also potentially relevant in at least three

other respects. In the first place, there is some minimal set of qualifications

without which the benefits of participation in higher education

cannot be obtained by the individuals involved. In the

second place, the qualifications of the students within the university

will affect to some degree or other the benefits obtainable to

anyone within it. And finally, the qualifications of students within

the university may also affect the way the university functions visa

vis the rest of the world. The university will do some things

better and some things worse, depending upon the qualifications

of those who make it up. If the students are “less qualified,

teachers may have to spend more time with them and less time

on research. Some teachers may find teaching now more interesting.

Others may find it less so. But all these considerations

only establish that qualifications, in this sense, are relevant, not

that they are decisive. This is wholly consistent with the claim

that minority group membership is also a relevant but not a decisive

consideration when it comes to matters of admission. 67 And

that is all that virtually any preferential treatment program-even

one with quotas-has ever tried to claim.

I do not think I have shown programs of preferential treatment

to be right and desirable, because I have not sought to answer

all of the empirical questions that may be relevant. But I

have, I hope, shown that it is wrong to think that contemporary

affirmative action programs are racist or sexist in the centrally important

sense in which many past and present features of our society

have been and are racist and sexist. The social realities do

66 I prefer to focus on these aspects of desert and considerations of fairness

rather than principles of compensation and reparation because I can thereby

bypass the claim that compensation or reparation is being exacted from the

wr~>ng individuals, because they are innocent of any wrongdoing, and causally

unconnected with the injuries suffered. I do think the causal link is often present

and the claim of innocence often suspect. But my analysis puts these issues to

one side. For a discussion of some of the literature that discusses the issues of

compensation and reparation, see, e.g., Boxill, Tlze Morality of Reparation, 2 Soc.

THEORY & PRAc. 113 (1972).

6 7 The preceding six paragraphs appear in substantially the same form in

Wasserstrom, supra note 33, at 166-67.

622 UCLA LAW REVIEW [Vol. 24: 581

make a fundamental difference. It is also wrong to think that

these programs are in any strong sense either unjust or unprincipled.

The case for programs of preferential treatment can

plausibly rest on the view that the programs are not unfair (except

in the weak sense described above) to white males, and on the

view that it is unfair to continue the present set of unjust~ften

racist and sexist-institutions that comprise the social reality. The

case for these programs also rests on the thesis that it is fair, given

the distribution of power and influence in the United States, to

redistribute in this way, and that such programs may reasonably

be viewed as useful means by which to achieve very significant

social ideals.

CONCLUSION

I do not think that the topics of racism, sexism, and preferential

treatment are easily penetrable. Indeed, I have tried to

show that they contain complicated issues which must be carefully

distinguished and discussed. But I also believe, and have tried

to show, that the topics are susceptible to rational analysis. There

is a difference between problems that are difficult because confusion

is present, and problems that are difficult because a number

of distinct ideas and arguments must be considered. It is my ambition

to have moved thinking about the topics and issues in question

some distance from the first to the second of these categories.