The U.S. Equal Employment Opportunity Commission

Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative

Remarks of Frank H. Wu, Dean Wayne State University Law School

Thank you for the opportunity to testify before the EEOC. It is an honor to appear here today.

I propose a new paradigm for civil rights. Our discussion of race has often proceeded from an assumption that the issues are literally and figuratively black and white. It is increasingly apparent that we need a framework that transcends the literally and figuratively black and white. Such an approach would improve our progress toward shared ideals.

First, race is not literally black and white. This is a factual proposition that is readily verified. Historically, there have been many communities and individuals who are not easily categorized by those labels. Increasingly, the growth of different demographic groups has made the United States a unique experiment. According to the Census Bureau, as of 2005 the nation’s population of 296.4 million included 98 million (33 percent) individuals who did not identify themselves as “single-race non-Hispanic white.” There were 42.7 million Hispanics, 39.7 million African Americans, 14.4 million Asian Americans, and 5.5 million American Indians, Alaska Natives, Pacific Islanders, and Hawaiian Natives.

People of color have faced prejudice, in many instances patterns and practices of prejudice, including those reinforced by formal legal rules. These forms of bias have common manifestations. For example, restrictive covenants on the conveyance of real property have excluded various groups from the American Dream of home ownership. To varying degrees, African Americans, Latinos, Asian Americans, and Native Americans have experienced and continue to experience residential segregation, both de jure and de facto.

Yet the group discrimination that affects non-black racial minorities also can be quite different than the group discrimination that affects African Americans. For example, Asian Americans commonly face the perpetual foreigner syndrome: even thirdgeneration Californians are presumed to be tourists. However, Asian Americans rarely encounter the same invidious assumptions affecting African Americans in terms of academic achievement: to the contrary, Asian Americans are thought to be exceptionally intelligent and hard-working.

The inclusion of Hispanics and Asian Americans can help rather than hinder our understanding of the situation of African Americans and Native Americans, respectively, if it is done with care for the data rather than inappropriate comparisons. The effort to hold up Asian Americans as a so-called “model minority” represents the latter, as it promotes an image of Asian American success (in implicit contrast to 3 alleged African American failure) that ignores the importance of human capital, the selective nature of migration, and the effects of pervasive stereotyping.

For these reasons, discussions about race that proceed from the premise that everyone can be assigned to a black box or a white box should be avoided. Regardless of an individual’s own background, academic specialty, or public policy preferences, a black and white approach begins with a picture of the world that fails to correspond to the reality around us. Discussions about race can and should be inclusive.

Second, race is not figuratively black and white. In popular culture, we repeat a narrative about racial progress that focuses on villains and victims. Our emphasis on the most egregious cases of racism – the race-based system of chattel slavery, the lynching and violence of the Jim Crow era, the practice of “separate but equal” public facilities that were as separate as they were unequal – is entirely understandable. There are still villains and victims, and of course we should continue to be dedicated to fighting the villains and helping the victims. Indeed, within recent memory we have made significant positive changes in virtually every aspect of daily life, whether it is in the legal system or in individual feelings toward mixed marriages. We have a consensus, forged by struggle and perhaps still fragile, but a consensus nonetheless that bigotry is wrong and equality of opportunity a right.

Yet we risk turning our emphasis on extreme cases into an exclusive concern with extreme cases. We prefer to identify an individual offender who has deliberately violated our norms, harming a discrete party, in a contemporary case with clear evidence. There are many other problems, however, that arise as a result of patterns and practices of conduct, disparities with complex causes, and circumstances created generations ago. Some of these problems are seemingly trivial in isolation, but they can be compounded to create devastating effects.

For example, social scientists are finding that most of us make implicit associations of race and other characteristics. We look at a person, and, depending on his/her physical features, we more readily think of other concepts. In particular, many of us – even people belonging to the disfavored group – display a tendency to associate darker skin colors with negative traits. We do so, despite our aversion to any conscious inference that dark skin correlates to negative traits. In the educational context, it is possible to present a “stereotype threat” to African Americans and women (and, in other societies, minority groups that have faced discrimination) that causes them to underperform on standardized tests. The effect may be caused by the negative stereotypes about their presumed intelligence and the possibility that their personal results will be interpreted by others as representative in a negative manner. In the 4 employment context, the latest experiments in testing show that some employers will use proxies for race and ethnicity (such as names), not race and ethnicity per se, to screen prospective employees. The effect is not much better than if race and ethnicity themselves had been used to reject candidates.

Thus, as discussions about race expand beyond the literal black and white they also ought to encompass more than the figurative black and white. In 1954, when the Supreme Court decided Brown v. Board of Education, the challenge was persuading people that racial discrimination was not right – everyone acknowledged that it existed; now, in a different era, the challenge is persuading people that racial discrimination still exists – everyone already agreeing that it is not right.

Thank you very much for considering these thoughts.

This page was last modified on April 9, 2007.

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