Conversation Of The Week V Fall 2011-2012: A Personal Odyssey Toward A Theme: Race And Equality In The United States: 1948–2009

University of Michigan

This 2009 Law & Society Association presidential address combines the personal and political to address issues relating to race relations in the United States. Combining narrative methods and quantitative data the article traces the roots of the author’s commitment to racial equality and evaluates the degree to which over the past 60 years anti-black prejudice has diminished and black-white equality increased. The conclusion is that important progress toward black-white equality has occurred and prejudice is less of a barrier than it once was, but large gaps remain, and the progress achieved is fragile. Moreover, the greatest progress is in areas where the government has most strongly intervened, meaning that the racial jurisprudence of the current Supreme Court and conservative economic policies may present major impediments to further closing black-white gaps. Law and society scholars are urged to attend more to racial equality issues than they have in the past.

As President Barack Obama has by now learned, being president does not mean having everything one’s own way, but some matters a president can influence. As LSA president, I suggested the theme of the 2009 Meeting: Law, Power, and Inequality in the Twenty-First Century.

They say that the personal is the political. In this talk I shall combine the personal and political with social science. I shall begin, Law & Society Review, Volume 44, Number 3/4 (2010)r 2010 Law and Society Association. All rights reserved.

In opening my Presidential Address, I thanked numbers of people for they help they gave me and for their service to the Association. These include our Executive Office staff: Ron Pipkin, Lissa Ganter, Mary McClintock, and Judy Rose; the co-chairs of the Program Committees during my two-year term: Annie Bunting, Marie Provine, Nancy Reichman, and Joyce Sterling; past Presidents Malcolm Feeley and Howie Erlanger; Review editor Carroll Seron, new editor search committee chair Joe Sanders, and all those who served as LSA Committee chairs or Trustees during my term as president. I thank you all again.

They say that the personal is the political. In this talk I shall combine the personal and political with social science. I shall begin, if you will indulge me, by sharing aspects of my life that shaped my commitment to racial equality, especially black-white equality, and ultimately motivated my choice of theme. I will then revert to my sociologist persona and say more about racial inequality, its persistence in the age of Obama, and the challenges continued inequality pose for law and society scholarship.

A Bit of Biography
My odyssey toward this theme begins, in a way, in 1935, when my parents were married in the midst of the Great Depression. For reasons I need not go into, my mother was from the start the family’s principal breadwinner. She had a steady if low-paying job throughout the 1930s, while my father contributed commissions he received from cartoonists who used his ideas in their drawings. In 1940, however, as the nation began to move to a war footing, he saw an opportunity to use his high school mechanical drawing to secure work as a draftsman, and he was invited to interview at New Jersey’s Curtis-Wright Corporation. He left New York with high hopes but did not return home until midnight, having spent six hours wandering the city streets, feeling too devastated to tell my mother what had happened. The interview with the foreman had gone well, and my father was offered the job. But while they were completing the formal hiring process, the foreman, making small talk, asked my dad where his family was from. When my father said ‘‘Poland,’’ the foreman asked if he was Russian Orthodox. ‘‘No,’’ said my father, ‘‘I’m Jewish.’’ Immediately, the job offer was withdrawn.

‘‘My men,’’ said the foreman, ‘‘won’t work with a Jew.’’ Fast forward some seven or eight years. I am five years old, and we are choosing sides in a game, playing eeny, meeny, minee, mo. It is not a tiger we are catching by the toe. The word was nigger. Nigger conjured up the image of a bogeyman in my mind, but the image was white. I must have heard the ‘‘N’’ word used; hence my association with a scary person, but how, circa 1948, could the image be white? This was possible because I had no experiences associating black people with the epithet. I do not recall ever hearing my father or mother use the ‘‘N’’ word, and the town I grew up in was entirely white.

Personal Odyssey Toward a Theme
There are only two black people I recall from my early childhood. One is a woman we called Mame, a name that I now realize we probably gave her. She cleaned house, but I expect she was mainly hired to watch over me and my sister after school when my parents were working. I liked Mame, but the memory that sticks is that she listened to soap operas as she cleaned; and at six and seven I was an interested follower of As the World Turns and The Young Dr. Malone. One other memory remains vivid. One year, so she could give her son, who was about my age, a birthday party, my mother told Mame that after school she could take me to her home. The apartment was a flat, one floor up, perhaps above a store, and dimly lit. Entering I saw perhaps a dozen children sitting on the floor around the room’s perimeter, all neatly dressed and all black.

Although I was not made to feel unwelcome and participated in the birthday games, I felt I did not belong and knew I was there on sufferance. Surely being the only white in a group of black children was in large measure the reason, but I have had similar feelings as an adult when introduced into a group of white strangers with whom I have had little in common. The power of race is that it alone can suggest that one has little in common.

My family had little money, but even as a six- or seven-year-old, I sensed that Mame’s family was far worse off. Only in retrospect do I realize that she was leaving her own children to earn money caring for me.

The other black person I knew as a child was a Liberian graduate student who spent about 10 days one Christmas sleeping in our living room. The name I recall is Emmett Harmon. If, as I believe, he was the Emmett Harmon I Googled, he was one of two black students who graduated from Harvard Law School in 1950 and among the first blacks ever to graduate from HLS. I liked him a lot, and I felt he liked me. We talked about how some day he would be President of Liberia and I would be President of the United States. He probably knew what I didn’t, that my dream job was then, and may still be today, an impossibility for a Jew.

What I didn’t know at the time was how Emmett Harmon came to stay with us. He had been invited by my uncle, who owned the furniture store where my mother worked, apparently as a favor owed some business associate. My uncle then asked my mother to host him because, he said, his neighbors in Nutley, New Jersey, would never stand for a black man, even temporarily, living among them. So Emmett never enjoyed my uncle’s big house and large lot but had to decamp on the living room couch of our first-floor walk-up, since our small apartment had only two bedrooms.

These were the only two black people I knew personally until I went away to college. I was, however, from about age 10 on, an avid reader of news, and the 1950s were a time of headline-grabbing racial ferment and liberation. I followed the stories on Brown v. Board of Education (1954), the Montgomery bus boycott, the Emmitt Till murder, and the troops sent to Little Rock.

I am sure these stories helped shape my racial values.

I expect that growing up in the working- (aspiring middle-)class community of North Arlington, New Jersey, did as well. In my school the tough guys who were the disciplinary problems and who occasionally assaulted nerds like me were Italian Catholics. Our town, which was only a 15-minute bus ride from Newark and 25 minutes from New York City, had no black residents? This was no accident. When I was a senior in high school, it was rumored that a black family was going to move to our town, but the house they bought burned down before they could move in.

When the editorial staff of our high school paper wanted to write an editorial deploring what had happened, our teacher advisers (or perhaps it was the school’s principal) would not allow publication.

I will skip over most of the rest of my story except to say that my views on race were cemented at Oberlin, where, with Vietnam not yet an issue, the black struggle for integration was a (no dissent allowed) campus commitment. Perhaps because I graduated Oberlin not only before the Gulf of Tonkin incident, but also before the Watts (and subsequent) riots and the separatist appeal of the Black Power Movement, I left Oberlin a committed integrationist. I remain such to this day. Neither black nor white separatism contemplates a world I want to live in.

As a Michigan Law School faculty member, I also had to confront race. Michigan began its affirmative action program in 1968, the year I joined the law faculty. I recall receiving exams during my early years on the faculty that led me to wonder if the writer should be allowed to graduate. Almost always the writer turned out to be a black student. But quite often the exam writer was a student whose class performance showed considerable lawyerly ability. I recall agonizing before I raised one student’s grade from a low D to a C or C+. In a class of about 100, his exam was among the two or three worst I received, but his class performance placed him in the top 10 percent of all my students. As a young professor I questioned whether raising his grade to a passing level was legitimate.

Today I think I probably didn’t raise it enough.

In the early 1990s I chaired a law school committee charged with rewriting the law school’s affirmative action rules to ensure they were Bakke-compliant. This led a decade later to one of my most treasured career experiences, being a lead witness in Grutter v. Bollinger (2003), the ultimately unsuccessful suit brought to declare affirmative action in higher education unconstitutional. Equally satisfying was my involvement in a research project that David Chambers and Terry Adams had launched shortly before Grutter was filed. This project followed 27 cohorts of Michigan Law School graduates. Analysis indicated that, controlling for time since graduation, Michigan’s black students, along with other affirmative action–eligible students of color, were every bit as successful in their careers as the school’s white students despite their lower law school grades (Lempert et al. 2000). For reasons I never fully understood, the law school’s defense counsel were not interested in presenting our findings to the trial court, but a group of student interveners were. I was thus the only person who testified for both the law school and the interveners.

I have other racially charged memories as well. One dark night, walking along a canal in Amsterdam during the Association’s first international meeting. I saw two young black men, perhaps in their twenties, walking toward me. I had by then learned America’s racial lessons too well and felt involuntarily fearful. Still, I was surprised when from about 10 feet away, one of them said, ‘‘Give me all your money or we’ll kill you.’’ Realizing they could not immediately grab me and thinking this was Holland and they would not have guns, I turned and ran. They laughed. I doubt, however, if this experience can explain my score on the IAT, nor will I reveal it. I will simply say that as a good liberal, I should be ashamed of what the test seems to say about my innermost attitudes on race, or at least I should be if seeming were reality.

Speculations on Jews and Blacks
I believe that my commitment to racial equality is largely explained by four factors: my parents’ lack of racism, growing up when and where I did, my experiences at Oberlin, and growing up Jewish. Among white Americans, Jews in the 1950s and 1960s were the most supportive of racial equality. Some died for this commitment.

Growing up when I did, it seemed obvious that American Jews so strongly supported the civil rights movement because memories of the Nazi Holocaust and the experience of American anti-Semitism were ever-present. The Jewish worldview, colored by family tales of horror and injustice, created empathy for the condition of black people and overwhelming support of their struggle for freedom and equality. There was in my family only one right way to think about the black struggle. The Jewish commitment to racial equality and the empathy Jews had for blacks was genuine. If a people can be credited for collective virtue on an issue, I think that when the issue is American racism, Jews should be so credited.

But growing up, I also sensed a less pure motivation. I felt then and still do that the viciousness of anti-Semitism not only created empathy for a people seen as oppressed but also drove a commitment to black civil rights grounded in the need for self-protection.

Jews of my parents’ generation saw that no matter how prejudiced some Christians were against Jews and no matter how they disvalued Jewishness or sought to exclude Jews from the elite spheres of public life, Jews were not Negroes. Jewish people, they felt, would always be above black people in the social pecking order. Thus in supporting and even fighting for the rights of black people, Jews were insulating themselves from prejudice. The more rights black people had and the further they penetrated into white society, the more secure the rights of Jews would be and the greater their acceptance by white Christians.

This, I believe, is why in the late 1960s and early 1970s some Jews reacted so strongly and with such hostility, breaking longstanding commitments and coalitions, to the arguably, and in some instances clearly, anti-Semitic comments of a minority of self appointed black spokespeople.

This visceral response was not, in my view, a reaction to either the amount or virulence of perceived black anti-Semitism, nor was it solely a reaction to perceived ingratitude to a people who had been in the forefront of whites supporting the black freedom movement. Rather, or additionally, it stemmed from a sense that blacks were seeking to reverse the lower rungs of the ascribed social hierarchy. They were attempting to raise themselves from the bottom rung by supporting the anti-Semitic case for placing Jews there. It wasn’t indignation that this perceived effort raised among Jews; it was a deep latent fear.

Why was I not affected, two reasons I think. I grew up not just post-Holocaust but at a time when the Holocaust experience was so recent and so frightening that it was seldom discussed, at least not in front of the kids. Moreover, I never in my life have felt victimized by anti-Semitism. I also think it helped to be both a natural and trained sociologist. The sociological perspective distances one a bit from the emotion of social phenomena, as it feeds attempts to understand rather than to praise or condemn.

Possible Lessons Learned
I have used in my work both qualitative/narrative and quantitative methods, but will admit a slight bias toward the quantitative. Nevertheless, I think my story may have value beyond what it says about me, a subject few are likely to be interested in. If I can generalize from my experience, our deepest values are often shaped by childhood and growing-up experiences.

Attempts to explain them through rational choice models that assume self-interest are not likely to take us far. Moreover, we cannot assume that situations we might deplore, like an all-white town that in some measure maintained its whiteness extra legally, will necessarily lead to behaviors and attitudes we deplore. Had the bullies in my school been black, and not Italian Catholics, perhaps my attitudes would be different.

My history is also consistent with research in psychology and cognitive neuroscience which suggests that apparently small causes may have large effects (Thaler & Sunstein 2008). I don’t know if Emmett Harmon’s brief visit profoundly affected my attitudes toward blacks, but I would not be surprised if it did. My sociological biases lead me to think that unless President Obama can work a far larger change in the structure of social power and privilege than seems possible, his presidency will do little in the long run to alleviate racial prejudice or give blacks confidence that they can succeed. But I have begun to question these biases in the light of studies like those cited in Nudge (Thaler & Sunstein 2008) and the work of Steele and his colleagues on stereotype threat (Steele et al. 2002). Sociology may ignore important aspects of the human psyche that in the aggregate have important macro effects.

My story also tells me that there may be something to be said for ‘‘speech policing’’ of the kind that is condemned as PC (political correctness). For all I know, I encountered unspoken anti-Semitism or was cursed as a Jew behind my back, and it is even possible that I was, like my father, denied opportunities because I was a Jew. But my life was unaffected by any hate hidden from me, nor can I identify any opportunity foreclosed because of my religion. If people suppressed bigoted speech because it was not PC, I am grateful for what I never had to face.

This does not lead me to argue for interpretations of the First Amendment that would allow the state to ban racially or ethnically offensive speech without more, but I think a strong case can be made for the social enforcement of conventions like those that condemn use of the ‘‘N’’ word or seek to suppress expressions of prejudice on campuses, in the workplace, and in political life. The social condemnation of bigoted statements may not only make bigoted thinking less likely, but it also protects members of denigrated groups from the corrosive effects of feeling hated and the anger that accompanies mistreatment because of one’s race.

Social conventions may, however, be enforced with an excess of zeal, and this has characterized some promoters of anti-racist speech. By the same token, those most prone to hurl accusations of political correctness against people and institutions that seek to limit derogatory racial, gender, and religious speech can protest too much. Particularly in communal contexts like college campuses, norms seen as enforcing political correctness are often more correctly perceived as norms of civility. One learns from childhood on that some things may be thought but should not be said to avoid harm or embarrassment to others. Enforced civility on campuses, in the press and elsewhere makes people uncomfortable, and it should make people uncomfortable, because it limits how we can think. Yet in the long run we, including those who would be uncivil, are likely to be better off if bigoted speech, and symbols of bigotry like the ‘‘N’’ word, are in most circumstances socially suppressed.

A Sociological Perspective
The many studies that trace apparently small psychic causes to much larger effects suggest that the election of Barack Obama as president may have ramifications for racial equality beyond any structural changes and wealth redistribution his administration might bring about. But I have not so far abandoned my sociological side as to think structural variables are irrelevant or that we will see a sea change in the position of blacks due to the election of a black president. The possibility that the movement toward racial equality will be thwarted by hard-to-eradicate inequalities is a clear and present danger.

Elaborating on this theme, I shall turn from telling stories about the personal to a less idiosyncratic description of the political Fthe situation of black people in America today as visible in research and in statistics. (I could tell a similar story about members of other minority groups, but I think the issues relating to poverty and discrimination as they confront America today are best seen through the lens of the black experience.)

Visible Progress
In the United States today, blacks, as a group, are far better off than they were 62 years ago when President Harry S. Truman ordered the desegregation of the United States armed forces, the act that for me marks the beginning of the post–World War II movement toward racial equality. By any measure, whether it be income, wealth, education, job penetration, political office holding, or social acceptance, the situation of black people has improved dramatically over this period, both absolutely and relative to white persons. Perhaps the most dramatic recent sign of change is not the election of Barack Obama but the 2009 mayoral election in Philadelphia, Mississippi, the town made notorious in 1964 by the brutal slayings of James Chaney, Andrew Goodman, and Michael Schwerner. In that election, Philadelphia, Mississippi, chose its first black mayor. By itself this is not news; in many Mississippi towns black majorities have elected black mayors. What makes this news and a true marker of progress is that Philadelphia remains a majority white town.

The election of Barack Obama is, of course, the most visible marker, of how far we, as a nation, have come. But this does not mean that anti black attitudes swayed no votes. Many who voted for Senator John McCain might have voted Democratic had race not been an issue. But if this happened, I expect it was more than offset by racially motivated black voter turnout. I see no other way to explain the outcomes in North Carolina and Virginia, for example.

The good news for me in President Obama’s election is not that we have reached a point where black ethnic pride and loyalty (or anti white sentiments) can counterbalance white ethnic pride and loyalty (or anti black sentiments). Racially polarized voting has been with us for decades, and while it is a reality we must recognize, I don’t like it no matter whom it favors. Rather, the good news in the election, as I see it, is that for many people, including people who harbor racial prejudices, race, even if it matters, is no longer a deal breaker, nor does it prevent seeing the racial other as a person. I don’t see President Obama’s success among blue-collar whites in Pennsylvania as signaling a revolution in racial attitudes such that other things being equal white blue-collar workers are as likely to vote for a black candidate as a white one. Rather, I see it as a sign that race did not obscure for many whites the fact that other things were not equal. In Pennsylvania, as in other states, the tide turned decisively in President Obama’s favor only when the economy started to collapse. At this point, racially motivated voting was a luxury many whites did not think they could afford.

Rather, they tried to determine which candidate would be better able to revive the economy and save their jobs, and they voted for that person.

The Fragility of Progress
I not only feel good about 60 years of racial progress but I am also pleased by recent events, some of which would have been unthinkable even a few decades ago. Still, I am uncomfortable with the metaphor commonly used to describe and extrapolate from this progress: that ‘‘we have come a long way down the road to freedom and equality, although we still have a ways to go.’’ This metaphor misleads in suggesting that achieving racial equality is now just a matter of continuing on a well-marked path, inevitably reaching the long-sought-after end. It downplays the degree to which progress toward equality has come in fits and starts, the role that law and policy have played, the danger that law may not just cease to be a force for progress but may actually impede it, the fact that progress has been experienced unevenly within black communities, and the potential fragility of much that has been gained should resource and job shortages come to characterize the next decades of the twenty-first century.

Income
Data suggest the fragility and unevenness of progress. From 1970 until 1988, the median black household income in constant dollars actually fell by $475, while white household income rose by $1,044 (U.S. Bureau of the Census 1990: Table 717).14 Many black households became not just poorer relative to whites, as best we can measure the relationship, but also poorer in absolute terms.

Medians, however, hide important movement. Examining earnings by race we see changes at both ends of the income distribution.

At one extreme, the proportion of white households with incomes of less than $5,000 (in constant 1988 dollars) dropped by 24 percent (from 6.6 to 5.0 percent) between 1970 and 1988, while the proportion of black households in this lowest income range increased by 11.6 percent (from 13.8 to 14.4 percent). At the other extreme of those earning more than $50,000, the proportion of white households rose by 40 percent (from 15.8 to 22.1 percent) from 1970 to 1988, but the proportion of black households rose by 73.7 percent (from 5.7 to 9.9 percent) (U.S. Bureau of the Census 1990: Table 716). To put this another way, in 1970, the typical black household was about twice as likely as the typical white family to be earning less than $5,000.

By 1988, black households were more than three times as likely as white households to be in this bottom group. At the same time, in 1970, the highest earning black households were a little more than a third as likely as white households (36 percent) to have incomes above $50,000. By 1988, they were about 45 percent as likely to be in this top bracket.

The overall picture for the years 1970–1988 thus indicates that the relationship between the income levels of white and black households within races and relative to each other were almost stagnant, and to the extent there was movement it was in the direction of increased inequality.

But the overall pattern obscures differences in how segments of the white and black communities fared relative to each other. There is in these data a glimmer of the rise of a black upper-middle class, but this brings with it increased distance between the best- and worst-off black households.

When we look at more recent data, which tracks income changes between 1990 and 2006, a somewhat different picture emerges. In 1990, the median black household income in constant 2006 dollars was 59.8 percent of the median white household income ($25,076 vs. $46,705) (U.S. Bureau of the Census 2009: Table 669) Over the next 16 years median black household income rose by about 14.5 percent while median white household income rose by 8.5 percent, so that by 2006, black median household income was 63.1 percent of median white household income. However, in constant dollars, the gap between the median household incomes of whites and blacks had diminished by only $72, enough perhaps for a dinner at the Olive Garden for a family of four.

Within these data there is, however another story, a story that testifies to the importance of government policy and the way economic growth is happening. Had the data ended in the year 2000, before President Clinton had been replaced by President Bush, black progress both absolutely and relative to whites would have been substantially greater. The median black household income in 2000 was 67.6 rather than 63.1 percent of white household income, and the earned dollar difference between the median white and black households at the turn of the millennium was not $72.00 closer than it had been in 1990 but $2,093. Moreover, both white and black households were better off than they were six years later, although during these six years the economy had seemingly continued to boom. In short, although it seems that between 1990 and in 2008 the gap between white and black household income was narrowing, that movement in fact reversed itself after 2000, and at least until 2006 it has been income inequality that is increasing.

The data also suggest the growth of a prosperous black upper middle class. The proportion of black families earning $100,000 or more in constant 2006 dollars rose by 59.6 percent between 1990 and 2006 (from 5.7 to 9.1 percent), and the proportion earning more than $75,000 rose by 43.6 percent (11.7 to 16.8 percent). White households with more than $100,000 in earnings also increased dramatically between 1990 and 2006, as the proportion in this bracket rose by 46.9 percent (from 13 to 19.1 percent). There was, however, only a 25 percent increase in the number of white households earning more than $75,000 because there was no change in the proportion of white households in the $75,000–$99,000 range. (It was 11.3 percent in both 1990 and 2006.)

At the other end of the scale there was a drop of 23 percent (from 31.7 to 24.4 percent) in the proportion of black households in the lowest income bracket, below $15,000 in constant 2006 dollars. This decrease appears associated with the Clinton administration since there was a 4.9 percent increase in the proportion of black households in this lowest income bracket (from 22.3 to 24.4 percent) between 2000 and 2006. The proportion of white households in the lowest bracket also fell, but the drop was only 12.4 percent (from 14.3 to 13.4 percent), apparently limited by floor effects. As with black households the entire drop appears associated with the Clinton years, but unlike blacks the proportion of white households at the bottom did not increase between 2000 and 2006 (U.S. Bureau of the Census 2009: Table 668). So again we see signs of the importance of government policy and the potential fragility of black income gains both absolutely and relative to whites.

Finally, we see a picture indicating substantial progress, then stagnation, then more progress when we look at people below 125 percent of the poverty level. In 1959, 55 percent of all black households were classified as at or below 125 percent of the poverty level. By 1969, this percentage had diminished dramatically to 32.2 percent. In 1988, it was essentially the same, 31.6 percent (U.S. Bureau of the Census 1990: Table 743). Beginning in 1994, however, the proportion of black households at or near the poverty level began to fall, reaching a low of 22.5 percent before rising, as noted above, to 24.3 percent in 2006.18 This is progress, but nearly one in four black households still had earnings at or below the poverty level even as the economy was booming for others in 2006, and the diminution of this proportion seems to have ceased and begun to reverse coincident with the beginning of the Bush administration.

Author Bio: Richard Lempert is the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, at the University of Michigan. He has served as President of the Law & Society Association and as Editor of the Law & Society Review, and is a member of the American Academy of Arts and Sciences. His publications include An Invitation to Law and Social Science (with Joseph Sanders) and A Modern Approach to Evidence (3rd. Ed. with Sam Gross and James Liebman) as well as edited volumes and numerous articles, including work on affirmative action, juries, informal justice, evidence law, capital punishment, deterrence, social science methods and the use of social science evidence by courts and policy makers.

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