’Marginal Whiteness
California Law Review
Volume 98, Number 5 (October 2010)
pages 1497-1594
Camille Gear Rich, Associate Professor of Law
University of Southern California
How are whites injured by minority-targeted racism? Prior to filing her Title VII interracial solidarity claim, Betty Clayton thought she knew. For years, Clayton, a white cafeteria worker employed by the White Hall School District, was granted a nonresidency privilege that allowed her to enroll her daughter in one of the district’s schools. This was a special arrangement, as neither she nor her daughter lived within the district’s boundaries. This special arrangement abruptly came to an end when one of Clayton’s black coworkers learned that she had been given the nonresidency privilege and asked the district for the same benefit. The district refused the black worker‘s request and, to rebut any claim of racial favoritism, rescinded Clayton’s right to the privilege as well. The district then reinstituted an old rule that provided that only “teachers” and certified “administrative” workers were entitled to the nonresidency benefit, thereby ensuring that both Clayton and her black co-worker were ineligible. Clayton found herself the victim of what she believed was an obvious case of explicit racial bias.
Was Clayton a victim of race discrimination? Her claim may give some readers pause. Some might conclude that she was not subject to race discrimination, arguing instead that she was merely a secondary victim that fell prey to “friendly fire”—a white casualty incidentally injured by the district’s attempt to discriminate against her black coworker. Others might share Clayton’s view, arguing that she was a victim of discrimination. But for the districts desire to discriminate against her black coworker, the district would not have reinstated the stricter benefits rule and denied Clayton the residency privilege. But for the district’s discriminatory actions, Clayton would have been able to preserve her access to a valuable economic benefit: the ability to send her daughter to a White Hall school. And Clayton’s supporters would note that there was ample evidence in her case to prove the district’s racially discriminatory motivations, including: the district’s prior discriminatory behavior; the timing of the district’s decision to return to the old residency rule; and the absence of a reasonable nondiscriminatory justification for the old rule’s reinstatement.
Clayton seemed to believe that the merits of her claim were self-evident; however, her confidence was misplaced, as her allegations raise thorny questions about how courts, antidiscrimination scholars, and indeed even laypersons see whites’ relationship to minority-targeted discrimination in the workplace. Courts called upon to review these questions, particularly in Title VII cases, spend precious little time exploring how whites perceive minority-targeted discrimination to operate, or the range of ways in which minority-targeted discrimination perpetrated by certain whites can directly harm other whites’ interests. A case in point: in Clayton, the court quickly concluded that whites can be injured by minority-targeted discrimination but then tracked Clayton’s claim into a little known area of Title VII precedent, referred to here as interracial solidarity doctrine. As Clayton soon discovered, this analytic turn was less of a boon than it initially seemed, as interracial solidarity doctrine exerts an extraordinary regulatory power over white plaintiffs who attempt to use Title VII to challenge minority-targeted discrimination in the workplace. Rather than merely sorting out strong claims from weak ones, the doctrine functions as a kind of normative litmus test used to assess whether the type of harm white plaintiffs allege as a consequence of minority-targeted discrimination counts as compensable injury. As this Article shows, the doctrine plays this powerful gatekeeping function because it is informed by certain historically specific civil rights era propositions about whites and their relationship to race and race discrimination. The Article examines the costs the doctrine’s strong normative commitments have imposed on Title VII plaintiffs and asks whether the enforcement of interracial solidarity doctrine has become an end in itself, regardless of whether it actually serves Title VII’s larger policy goals.
Specifically, Title VII interracial solidarity doctrine currently only recognizes two kinds of harm whites can suffer from minority-targeted discrimination, and therefore only permits plaintiffs to plead these two kinds of injury. The first injury a plaintiff may claim is the frustration of his associational interests. This injury is based on the civil rights era norm establishing that whites are entitled to the benefits of diversity, that is, the economic, cultural, and educational relationships they can form by associating with mino-ities. The second injury a plaintiff can raise is the violation of a plaintiff’s right to a “colorblind” or nondiscriminatory workplace. This injury is informed by the civil rights era norm that whites have an interest in striving for a colorblind society. The “colorblindness” injury is based on the understanding that racial prejudice is a moral wrong because it compromises the struggle to make the United States a race-blind meritocracy. Scholars will recognize that both the diversity and colorblindness concepts of harm appear in areas of antidiscrimination law other than the interracial solidarity cases; however, these concepts play a special role in Title VII interracial solidarity doctrine, as they are the only bases the doctrine recognizes as a source of harm…
…In summary, this Article reviews cases involving Title VII interracial solidarity claims to reveal the hold that civil rights era norms have on legal understandings about whites’ relationship to minority-targeted discrimination. My goal is to reveal the burdens these norms impose on low-status or marginal whites as they attempt to plead their Title VII claims. My hope is that the discussion of marginal whites’ interests will help reveal their potential as allies in antidiscrimination struggles. However, this potential can only be fully realized if marginal whites’ problems and challenges are better reflected in Title VII doctrine and explored in antidiscrimination scholarship. To this end, this Article also shows that the two kinds of injury courts currently recognize under interracial solidarity doctrine—the denial of the enjoyment of a colorblind workplace and the frustration of one’s interest in diversity-based associational opportunities—are second-order concerns, and consequently fail to motivate substantial numbers of white persons. Indeed, the doctrine‘s focus on second-order injuries seems even more puzzling when one considers that it almost entirely overlooks the more highly motivating first-order injuries marginal whites suffer because of minority-targeted discrimination, including basic economic and dignitary harms. A doctrine that attended to these first-order interests would be far more effective in causing whites to initiate interracial solidarity actions. Therefore, the Article uses “failed” Title VII interracial solidarity cases like Clayton to develop a more expansive and nuanced account of how whites are injured by minority-targeted discrimination in the workplace, providing an essential supplement to the existing concepts of harm in Title VII interracial solidarity doctrine.
This Article, however, is more than a descriptive account that catalogues overlooked or undervalued injuries present in interracial solidarity cases. It also uses these injuries to develop a theory of “marginal whiteness,” a framework that allows courts and scholars to consider how white racial identity dynamics can be linked to interracial conflicts in the workplace. The discussion begins by defining the class of “marginal whites”—individuals who, because they possess some nonracial, socially stigmatized identity characteristic, have more limited access to white privilege, and relatedly have a more attenuated relationship to white identity. I argue that this attenuated relationship to whiteness often causes marginal whites to chafe at other whites’ requests that they bear burdens to support the maintenance of white privilege. Put differently, marginal whites’ ambivalence about whiteness becomes a critical frame that can allow low-status whites to see how higher-status whites’ attempts to limit the options of minorities actually materially interfere with marginal whites’ immediate economic and dignitary interests. The Article posits that, if Title VII provided these marginal whites with a compelling account of their injuries, they would be more likely to bring Title VII claims. The Article then considers how the marginal whiteness framework can help improve antidiscrimination scholars’ analysis of intraracial and interracial conflicts more generally…
…Part IV anticipates concerns about the social and intellectual transmission of the marginal whiteness framework, addressing questions about its descriptive accuracy, theoretical ambitions, and its potential to disrupt or undermine contemporary antidiscrimination mobilization efforts directed at whites. Part IV explains that, rather than wholly replacing civil-rights-era-influenced normative and descriptive accounts of whites’ interests, the concept of marginal whiteness provides an essential supplement to existing accounts of harm. Part IV also more specifically considers the ways in which marginal whiteness can function as a useful analytical tool in understanding contemporary “white racial formation” projects, including the overtures being made to and the identity politics struggles associated with multiracial whites, white Latinos, and Middle Eastern whites. It explores marginal whiteness’s potential explanatory power for understanding questions of ethnic and class fractures within the category of whiteness, while acknowledging the need for additional study on these questions. Part IV concludes by highlighting the ways in which the marginal whiteness framework breaks substantially from early Critical White Studies’ accounts of white interests, demonstrating its promise as a better analytic tool for analyzing post–civil rights era whites‘ struggles regarding racial identity than existing models of their interests.
Therefore, although a person may claim a “white” identity, she is merely a putative white person and therefore may not be socially recognized as white in all contexts. The unstable nature of putative whites’ whiteness claims is more easily seen in the case of multiracial whites or whites with phenotypic characteristics that may suggest they are of mixed or prominent ethnic ancestry. What is less often acknowledged is that putative whites with phenotypic characteristics that technically mark them as white may still exhibit features, engage in behaviors, or be otherwise marked in some way that signals to other whites that they are marginal or low-status white persons. Circumstances of scarce resources—or political, cultural, or social conflicts—may trigger higher-status whites to use these features to effectively redraw the lines of whiteness in a particular context and deny marginal whites access to resources (or white privilege). These low-status or marginal whites may find that they are, for all practical purposes, being treated like minorities, as they are subject to defamatory statements and denial of privileges available to other white workers. Consequently, people who exhibit low-status identity markers, but self-identify as white may find that their anxiety levels are increased when they are exposed to new or unfamiliar communities of whites, as they fear potential rejection or unfair treatment by other whites who do not regard them to be true white persons.
Although anxieties about racial misrecognition trouble all persons invested in maintaining their racial identities, individuals seeking to claim whiteness often suffer from particularly acute anxieties, because being socially recognized can confer a raft of social and material benefits. Stated alternatively, these putative whites know that misrecognition is not merely a source of irritation, embarrassment, or inconvenience, as might be experienced by a minority not properly identified with her chosen racial group. Rather, misrecognition may impose significant material costs for self-identified whites, costs that can affect their life chances…
…Finally, whites may be attracted to the marginal whiteness framework because it responds to America‘s changing demography. The number of multiracial persons in the United States who identify as mixed-race has risen significantly. At the same time, there has been a willingness by some white communities to accept mixed-race persons as white. Additionally, Latinos and Middle Easterners encounter institutional and social pressures that encourage them in some contexts to identify as white persons. Together these changes have created a situation in which many persons socially recognized in some spaces as being white are treated as minorities in others. This split consciousness may cause these contingently recognized whites to have a distant relationship with whiteness, similar to that predicted by the marginal whiteness model. Taken together, the demographic and social changes described above present antidiscrimination scholars and courts with a critical challenge: will we construct a doctrine that responds to these whites‘ potential to develop more of a critical stance on whiteness and white privilege, or will we allow this potential to go unmined? As studies show more whites growing disengaged from discussions about race, there will be more pressure to find novel ways to encourage whites to rejoin antidiscrimination efforts…
Read the entire article here.
