Vicki Schultz, Yale Law School

Reimagining Affirmative Action

Date: 
Mon, 02/10/2014
Location: 
4:30-6 PM, Kerstetter Room, Marx Hall

Please join us for a LAPA Seminar with Vicki Schultz, Ford Foundation Professor of Law and Social Sciences at Yale Law School.  Her commentator is Paul Frymer, Associate Professor of Politics and Acting Director of LAPA for 2013-2014.

As always, the LAPA format asks that seminar participants familiarize themselves with the paper in advance. The commentator will open the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception in the Kerstetter Room, giving everyone a chance to mingle and meet.

Abstract: "Affirmative action is in trouble; its legitimacy is seriously threatened.  Deep divisions on the Supreme Court mirror doubts among the citizenry, who are increasingly skeptical about race-conscious programs. Commentators attribute the breakdown of consensus to a political and ideological shift to the right that denies the need for such initiatives.  But that explanation is only partial. The truth is that the real world, and social science understandings of it, have changed in ways that matter.  Although the older views of affirmative action still have some resonance, they are no longer adequate to a 21st century understanding.  In this piece, Vicki Schultz articulates a revised rationalization for affirmative action associated with a new approach to anti-discrimination law she calls disruption theory.  This theory targets as the essence of discrimination the institutional processes that facilitate marking some people as “different” and make those differences matter to their detriment.  Social science reveals, for example, that highly skewed numerical ratios foster stereotyping, stereotype threat, and ingroup favoritism, practices that emphasize, exaggerate, and even elicit the display of preconceived, negative race- and sex-based differences that exclude or marginalize some people and benefit others.  Disruption theory seeks to identify and interrupt such difference-producing dynamics, institution by institution, for the purpose of fostering greater inclusion and solidarity.  From this perpective, as Schultz shows, the reason and role for affirmative action changes.  Affirmative action still takes race or sex into account mainly to increase the numbers of certain people who would otherwise be scarce.  But its purpose is no longer to compensate for difference or to accommodate it.  Rather, the purpose of affirmative action is to change the discriminatory processes that make difference relevant or real in the first place.  To this end, the numbers matter.  Outsiders must be admitted in sufficient numbers not to feel comfortable expressing their difference, but to allow challenge or censor the idea that they are different.  Not only is this new view of affirmative action grounded in recent social science research; it is beginning to find support in the law. It helps clarify some thorny issues in affirmative action law, as Professor Schultz shows."

 

Vicki Schultz is the Ford Foundation Professor of Law and Social Science at Yale Law School, where she teaches courses on employment discrimination law, family law, work and gender, workplace theory and policy, the family, state and market, and feminist theory. Professor Schultz has written and lectured widely on these subjects. Her published work includes “Feminism and Workplace Flexibility,” 42 Connecticut Law Review 1203 (2010), “The Need for a Reduced Workweek in the United States,” in Judith Fudge & Rosemary Owen, eds., Theory Precarious Work, Women, and The New Economy: The Challenge to Legal Norms (2006), “The Sanitized Workplace,” 112 Yale Law Journal 2061 (2003), “Life’s Work,” 100 Columbia Law Review 1881 (2000), “Reconceptualizing Sexual Harassment,” 107 Yale Law Journal 1683 (1998), and “Telling Stories About Women and Work: Judicial Interpretations of  Sex Segregation on the Job in title VII Cases Raising the Lack of Interest Argument,” 103 Harvard Law Review 1749 (1990).   Professor Schultz is writing an intellectual history of antidiscrimination law, “Antidiscrimination Law as Disruption,” which traces the emergence of a new conceptual framework that treats the formation of social identities that are foundational to discrimination, such as race and sex, as fluid processes in which institutional dynamics play an important role.  Professor Schultz is a past president of the Labor and Employment Section of the Association for American Law Schools and a past Trustee of the Law and Society Association. She has been the Evelyn Green Davis fellowship at the Radcliffe Institute for Advanced Study at Harvard University, a fellow at the Center for the Advanced Study of the Behavioral Sciences at Stanford, and a fellow at the Whitney Humanities Center at Yale.  She was the MacDonald-Wright Visiting Professor of Law and Faculty Chair of the Williams Institute at the UCLA School of Law in 2010-11.  A former attorney at the United States Department of Justice, Civil Rights Division, Schultz began teaching at the University of Wisconsin Law School, where she developed the interest in law and the social sciences that has infused all her work.

Paul Frymer teaches and writes on topics in American law and politics, particularly as they intersect with issues of democratic representation, race and civil rights, and labor and employment. He is a former LAPA fellow (2004-2005), as well as Acting Director (2009-2010). He is the author of two books: Uneasy Alliances: Race and Party Competition in America (reissued in 2010 with an afterward on President Obama's election) and Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (2008), both of which were published by Princeton University Press. He has also either authored or is currently writing about topics ranging from legal understandings of political parties to the racial politics of Hurricane Katrina and affirmative action to the role of law and politics in the historical development of American territorial expansion.

Funded by the Bouton Law Lecture Fund