On Selecting Black Women as Paradigms for Race Discrimination Analyses

there is no basis for regarding one gender as the norm and the other as a deviation from it. However, a more sophisticated version of my colleague's question should be considered. It is a fact that males are dominant in this society, just as whites are dominant. Thus, one might suppose that studying particular forms of oppression would be facilitated if one focused on groups that occupy a subordinate position solely with respect to the characteristic with which the investigator is interested. For example, one would study race discrimination by looking at black male paradigms because one could then be relatively confident of excluding the effects of gender subordination. 2 However, this analysis also is mistaken. Every form of oppression is contextual, and the relevant context always includes all other socially salient personal attributes of the oppressed. Thus, because gender has social salience, race oppression plays itself out in some ways for black women and in other ways for black men. Similarly, gender oppression plays itself out in some ways for white women, and in other ways for women of color. Neither race nor gender oppression is a single, monolithic entity, and thus it's a mistake to suppose that either can be comprehended in the abstract. 13 Because race cannot be disentangled from its gendered manifestations, it would not make sense for me to tell stories about transparently white decisionmaking that exclusively feature men, in the hope that doing so would isolate race as the sole characteristic that mattered in these stories. However, one might then wonder whether it would make sense to construct a series of stories involving both men and women, thus highlighting race in a different way. If my tales included both men and women equally as targets of transparently white decisionmaking, race might emerge as the single thread running through all of them. Indeed, this approach seems consistent with my original conception of the transparency phenomenon. I began by asking myself what I know about whiteness, and the first thing that came to mind is that whiteness means not having to think about it. Transparency, then, refers to whites' unconsciousness of whiteness, and derivatively, to whites' use of white-specific criteria of decision. Viewed in this light, transparency is a concept that is grounded in the experience of white people. Because it originates in the perpetrator's perspective 4 on race, one might suppose that the personal attributes (other than race) of its targets would be irrelevant to the transparency story. 12 Catharine MacKinnon, for example, has taken the position that black men are oppressed as black, but not as men. CATHARINE A. MACKINNON, TOWARD A FEMINIsT THEORY OF THE STATE 160 (1989). 13 This is the antiessentialist critique of existing categories of discrimination. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 581-86 (1990). See also Grillo, supra note 11, at 17. 14 This terminology is Alan Freeman's. See Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. Rv. 1049, 1052-57 (1978). BLACK WOMEN AS PARADIGMS However, unlike the reified categories employed in traditional discrimination analyses-race, gender, etc.-transparency is a process; it's something that happens. In the conventional conceptual framework, race (for example) is a static quality, an attribute of the individual that is natural and immutable.' 5 In contrast, the transparency phenomenon is a product of social forces, and hence dynamic and changeable. I have begun to wonder whether it would be useful to frame the problem of discrimination from the outset as a matter of social processes,' 6 rather than to attempt to force it into the unwieldy categorical matrix of race, gender, class, etc., that we currently employ.' 7 From this perspective, transparency appears to be a form of marginalization, which I define as any social process that functions prospectively to prevent its targets from sharing power, prestige, or privilege in a given social context. Employing transparently white norms is a form of marginalization because it ensures that nonwhites will be assessed less positively than whites, and so has the consequence that whites will retain the bulk of social power and privilege. Another social process that often impacts people of color is retaliation, which is a reactive dynamic that divests social power after some measure of it has been attained. Consider, for example, Clarence Thomas' complaint that the Judiciary Committee's investigation of Anita Hill's allegations of sexual harassment constituted a "high tech lynching for uppity blacks." 8 Whatever one may think of the merits of that complaint, 9 it appeals to the undeniable fact that black men often are seen as threats to white society, and so have been the targets of the most severe forms of retaliation imaginable. As I reflect on these two generic methods of maintaining the status quo, I wonder whether the dynamics of marginalization and retaliation tend is I want to emphasize that in making this distinction between category and process, I'm comparing transparency to the conventional way of thinking about discrimination law. There is an exciting new literature on the social construction of race that questions-in my view, very persuasivelythe traditional conception I have just described. See, e.g., Ian F. Haney L6pez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REv. 1 (1994). 16 As indicated in the previous note, there are other ways to analyze discrimination as a social process. I think it might be possible to compare and contrast various such analyses, and ultimately develop a generic, functional account of contemporary racism. 17 This is the problem of intersectionality. Constructs such as "race" and "gender" immediately become problematic when one asks how they interact with one another. For example, if an employer treats black women badly in the workplace, but does not treat white women or black men equally poorly, is that race discrimination or sex discrimination, or both? Then there is the problem of proliferation. Aren't there other categories of discrimination as well? What about sexual orientation, disability, class, nationality, color, religion, etc.? You can see the difficulty: the conceptual grid quickly becomes too complex to be useful. See Stephanie Wildman, Privilege and Liberalism in Legal Education: Teaching and Learning in a Diverse Environment, 10 BER.KELEY WOMEN's L.J. 88, 91 (1995). 18 Ruth Marcus, Hill Describes Details of Alleged Harassment, Wash. Post, Oct. 12, 1991, at Al. 19 A number of thought-provoking comments on the Clarence Thomas-Anita Hill hearings can be found in RACE-INO JUSTICE, EN-GENDERINO PowER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY (Toni Morrison, ed. 1992). BERKELEY WOMEN'S LAW JOURNAL to diverge along gender lines;2" marginalization may be a mode of discrimination directed most often at women, and retaliation one aimed more frequently at men. This is not to say that processes of marginalization happen only to black women, or that only black men provoke retaliation.2 However, it seems to me that black men are more likely than black women to be perceived by whites as threatening, either in a personal sense or as threats to an existing social order, and so are more likely to be the targets of retaliatory strategies. In contrast, because black women are relatively less likely to be seen by whites as posing a threat to white supremacy, they experience marginalization more frequently than retaliation.22 This possible correlation between gender and strategies for maintaining the status quo may explain why it makes sense to tell the story of the transparency phenomenon as affecting black women, and so I return to Deloris, C.W., and Keisha. The simplest answer to the question why I made these fictional characters all women is because in constructing their not-wholly-fictional stories it just seemed right to me to tell them as stories about women. Further reflection on the nature of transparency has suggested the possibility that this was no accident; transparency might be the sort of process most naturally directed at women of color.23 If that is so, the transparency phenomenon could be the point of departure for a much broader reexamination of the processes of white supremacy, and for a reevaluation of the reified categories we currently employ in race discrimi-