Challenging the Status Quo of Gender Politics

Vaclav Havel once speculated that shopkeepers in communist societies used to hang signs in their shop windows carrying official slogans such as “workers of the world unite” not because they were committed to the unity of the world’s workers but because they were attempting to go along to get along, as the saying goes. The message was directed above, toward the communist officials who might make life difficult for the shopkeeper if they suspected he was not obedient to the regime.Something like this attitude informs much talk about race and gender in America today. As Dan Subotnik’s “Toxic Diversity” (New York University Press, 335 pages, $45) admirably demonstrates, feminist jurisprudence and “critical race studies” dominate law school scholarship on the topics of race and gender. While these doctrines differ in emphasis, their central assumption is the same – namely, that white male power continues to inflict innumerable injuries on those who differ.Dissenting voices are rare, and are treated harshly. Few legal scholars have any interest in confronting the race and gender theorists. Those operating in more traditional fields have little to gain by moving outside their areas of expertise to address race and gender, and have a lot to lose.University of Texas law professor Lino Graglia, for instance, suggested that blacks and Hispanics were at a competitive disadvantage with whites because in black and Hispanic culture “academic failure is not looked upon with disgrace.” The merits of Mr. Graglia’s statement may be debatable, but the goal of Mr. Graglia’s critics was not to refute him but to destroy him. Jesse Jackson went so far as to call for Mr. Graglia to be treated as a “moral and social pariah.”When Mr. Subotnik himself asked his own dean if he could teach a class on racism, he was flatly rejected – an experience that inspired him to write “Toxic Diversity.” It would have been safer to write about, say, the Supreme Court’s recent interpretation of the Constitution’s “takings clause” and leave the race and gender stuff alone. But sometimes scholarship requires bravery.“If white men are discouraged from participating in gender and race discourse because women and minorities know best, and if, when they do attempt to participate, they are ostracized and abused for having divergent views, what is the likely consequence?” Mr. Subotnik asks. His answer: Critical race and feminist scholars don’t receive the scrutiny they should, and identity politics spin even further out of control.For example, Mr. Subotnik introduces us to Regina Austin, a professor at the University of Pennsylvania Law School (my alma mater). Writing about a 1967 case involving an injury inflicted upon a young nursing-home orderly by her employer, in which the Wisconsin Supreme Court reduced the jury award against the employer on the grounds that the alleged physical damages lacked proof, Ms. Austin criticized the court for not taking into account the broader social context of abusive relationships between “black domestics and their white employers.”Ms. Austin’s approach, which Mr. Subotnik argues is typical of the proponents of identity politics in legal scholarship, presumes an injury against the plaintiff on the grounds of racial injustice. Collective white guilt is assumed, and individual liability for injustice is assigned. In that case, why even bother having trials?But Mr. Subotnik points out an even worse problem with Ms. Austin’s argument. In the course of interviewing the attorneys involved in the case, he discovered that the alleged “black domestic” was actually white. Ms. Austin had failed to check even the most basic facts of the case.This sort of sloppiness is to be expected, Mr. Subotnik argues, in which the discipline of critical peer review central to most other areas of serious scholarship has been effectively suspended. And he catalogs countless other examples in his book.Some regard foolish scholarship as a necessary by-product of serious scholarship, and would prefer to ignore it when possible and tolerate it when necessary. Mr. Subotnik rejects this approach because he sees identity politics scholarship as not merely useless but positively harmful to society and to those women and minorities in whose interests it presumes to speak. Mr. Subotnik calls on legal scholars and the general public to reject the attempts to improve the lot of women or minorities through what Mr. Havel called “specious ways of relating to the world.”And for all its criticism of the race and gender theorists, “Toxic Diversity” is not an attempt to dismiss talk of race and gender in law schools. It is an attempt to clear away some of the obstacles and point out the obfuscations that prevent our law schools from dealing with race and gender with the vigor and intelligence they deserve.Mr. Carney is a lawyer living in New York City.

Challenging the Status Quo of Gender Politics

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