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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 B‘nai 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. 76–81 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
provision– particularly 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 “race” would 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 “reduce” the
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 w‘a,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 belie‘fs as to ,.what accounts• for 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
bathrooms– a 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 fo‘sterep 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
reason” to 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 mother– there 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 sex–linked ….
. . . 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 “natural” differences
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 visual–spacial 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 ideal– if 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 1–91.
58 Although ostensibly empirical, the q1.1estion of whether and to what
extent affirmative action programs “work” has 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 wrong• both -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 members‘ of 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 persons‘ who 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 matters– an 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.
Leon Letwin (1929-2015) 