Richard Thompson Ford, George E. Osborne Professor of Law, has written a new book titled Racial Culture: A Critique, published by Princeton University Press, 2005. In this provocative, rigorous, and sometimes even humorous book, Ford takes direct aim at one of the tenets of contemporary academia—multiculturalism. Is there such a thing as black culture, or Latino culture, or women’s culture? Ford concludes that by and large, there isn’t. To take just one example, there are numerous, and ever-changing, subcultures within black America that vary by income, geography, interests, and education. To impose a single “black culture” on such a diverse group of people is not only inaccurate, but also counterproductive. Ford argues that the growing popularity of this form of multiculturalism hurts individuals within these groups just as much, if not more, than it helps them. And attempts to enshrine these cultures into law pose even greater risks. Stanford Lawyer Editor Eric Nee sat down with Ford to discuss the book and his views on race, discrimination, and culture.

What inspired you to write this book? 

In 1999 I was asked to write a paper about race in the 21st century. At that time, the idea that  questions about racial differences and questions about cultural differences could be answered in the same way, was—as it still is today—a popular idea. It’s dominant in the legal academy, and in other parts of the academy as well, and increasingly so even in the rest of society. But in the back of my mind I’d always had misgivings about an approach to racial difference and race relations that emphasized the idea of cultural difference. It created litmus tests for racial belonging that I thought were quite destructive for me.

But these social categories do exist. 

Social categories like race do exist, they have an impact on people’s lives, and they have to be dealt with. Race is certainly one of the categories that matter in today’s world. It would be naïve and dangerous to say otherwise. But there’s a difference between recognizing that and concluding that the categories in fact describe significant differences between people. There’s a difference between believing that the categories exist, and believing that the categories are accurate as categories. [Kwame] Anthony Appiah says it well when he says “One need not believe in witches to recognize that women were burned at the stake as witches, and hung as witches, and drowned as witches in colonial Massachusetts.”

Now, I don’t want to make the extreme statement that there are no differences between the various races. There are differences. People can observe what an anthropologist would call cultural differences that roughly divide racial groups. You can make some generalizations, but what’s important is that they’re just that—generalizations.

And these cultural differences are socially produced. They’re not intrinsic to the group.

Exactly. And to the extent racial cultural differences exist they can best be described in terms of generalizations. The more specific one tries to get, and the more one looks at individuals, the less valid these generalizations are. Black culture is fragmented into subcultures itself, and it overlaps in many significant ways with the cultures of other racial groups. It borrows heavily from any number of other racial groups and other subcultures borrow from it—“soul food” for instance, is an awful lot like Southern cooking generally. Once that’s recognized, you start to get a complicated picture and it’s difficult to say, “these practices belong to this race and those practices to that race.”

Does race have any scientific basis, or is it a social construct? 

My view is that race doesn’t have a biological or genetic basis. It’s a social construct that was invented during the colonial era that ultimately served to justify the exploitation of some people. I’m not a scientist, but my reading of the literature is that this is a widely shared consensus view among biologists and geneticists—that there are no biological or genetic races. What happened in race discourse in the late ’80s and the ’90s is that the discredited idea of race as a biological fact was underwritten by the idea of race as a cultural fact. Once one basis for belief in races was discredited, another one rushed in to fill its place, and that was culture.

But interestingly, the people who did that were largely progressives.

And there’s the rub. Many progressives feared that the attack on the idea of biological races would potentially undermine the basis for things like antidiscrimination law and affirmative action. The fear was that once you don’t have races anymore, how can you have a law that’s based on protecting races from discrimination, or ensuring that a particular racial group is appropriately represented in college admissions? I think it was a mistake to imagine that you had to prop up the idea of races in order to justify these programs. Because for the reasons we’ve already mentioned, you don’t have to believe in races to believe in racism.

And then we had the Bakke decision. 

So Bakke comes along and more or less eliminates the possibility that the university can defend affirmative action as a response to racism generally, because Justice Powell’s opinion is clear that the attempt to remedy what he calls “societal discrimination” does not constitute for constitutional purposes a compelling state interest sufficient to allow the university to consider race. Race can only be considered when remedying specific instances of discrimination. But diversity did constitute a compelling governmental interest. Universities were then faced with the choice of either going through the effort of identifying specific instances of discrimination and perhaps even announcing and unearthing their own past discriminatory practices, or opting for diversity. It’s pretty easy to see that it’s advantageous for the university to go with diversity.

After Bakke, diversity emerges as the rationale for affirmative action. If you look at the speeches of university presidents all the way up to the present, it’s “diversity, diversity, diversity. That’s why we’re doing affirmative action.” Cultural difference seemed to provide an example of that kind of diversity. So yes, Bakke had the effect of pushing culture to the forefront. And this is happening at the same time that multiculturalism is happening at the university—the important insight that other cultures besides those of Western Europe are worthy of study. Combined, these two things—Bakke and academic multiculturalism—did a lot to advance the idea that racial difference is largely a matter of cultural difference.

But society was dominated by a European male culture. 

Yes, there was a time in American history in which cultural conformity and a belief in a very narrow range of acceptable lifestyles and ideas was a serious problem in the United States. To some extent it still is. But the risk of the identity politics approach is that we’re reproducing that same kind of cultural domination, but we’re just giving each group its own version of it. You don’t have to be Ward Cleaver, you get to be the stereotypical black person or the stereotypical Latino. You get that rammed down your throat instead. That may be a little better, but not much.

You also make the point in the book that it is risky to use those cultural stereotypes as the basis for law. 

There have been movements at various points to advance the idea that antidiscrimination law should protect the cultural traits of the various protected groups. My worry is that subtly, and maybe not so subtly, we would have now an official account of a group cultural practice that’s part of the published opinion of the federal judiciary. One of the dynamics of membership in the various, what I call “canonical” social groups, is a concern—one might even say an obsession—about authenticity. Are you an authentic member of our group? That concern about authenticity, by its very nature, seeks out authoritative accounts of group memberships so that you can test people—if you’re really one of us, you’ll do this or that. So then you get a federal opinion that says the reason the employer can’t have this particular workplace rule is because it discriminates against this group’s culture. Now we have an official account of the group’s culture—a published federal opinion that says black culture is the cornrow hair style, or black culture is out-of-wedlock pregnancy, as was suggested in one of the cases I cite in the book. I find that troubling. It has the potential to begin to lock in ideas about what it means to be an authentic member of a racial group that will be hard to contest once the federal Court of Appeals or the Supreme Court has said “this is your culture.” Of course it would also encourage people to adopt the behavior because now it’s legally protected.

And how could you possibly codify these cultural traits as they change? 

The EEOC would have to triple or quadruple in size to keep track of all of these things. So there are technical problems with it. It also strikes me that there are political problems that are probably even more insurmountable. What’s forgotten is that Title VII was an act of Congress, and it requires popular support. To the extent that it goes too far in front of popular opinion, it’s likely to be reformed by Congress. So the idea that you can expand Title VII to cover “cultural discrimination”—basically discrimination based on behavior—is unrealistic. If the vast majority of Americans think, “that’s not race discrimination,” that’s a relevant consideration.

What is the best way of implementing antidiscrimination laws and affirmative action without creating the kind of problems you have articulated? 

The correct way of dealing with both of them is to focus on racism and racial dis- crimination—and discrimination against other groups—that focuses on the motivations and the state of mind of the discriminator and the effect on the social condition of the protected groups, but not on the characteristics of the person who’s arguably being discriminated against. The concern is to eliminate practices that are based on or reinforce racism. For affirmative action, it’s a similar solution. The reason affirmative action is an important program is because it responds to the various effects of discrimination in society. In my view Bakke was wrongly decided because institutions should be able to have policies to remedy societal discrimination. I think Justice Powell was wrong in Bakke to close that off as an avenue.

But how can a university or any other institution deal with these issues while still conforming to the law? 

The university should take seriously the discussion of diversity in Grutter [the recent Supreme Court opinion upholding the University of Michigan Law School’s affirmative action pro- gram]. I think Justice O’Connor’s opinion there purposely avoids requiring universities to focus on cultural discrimination. I think she is purposely ambiguous about the status of diversity, and that her opinion allows universities to say that a particular group of people has had an experience with discrimination and that’s what we’re concerned about when we consider race in admissions. It’s particularly obvious in the context of the law school, in which we’re talking about racial issues in constitutional or antidiscrimination law. It’s easy to see the way that classroom conversation can benefit from the perspective of people who’ve been the targets of some of these discriminatory practices. That’s the pragmatic answer. The longer answer is that I support a litigation strategy that seeks to reopen the societal discrimination rationale for affirmative action—but that’s a bigger question and obviously comes with some risk.