3

We the People: Racial Realism in Politics and Government

One might wonder why government employment should get its own chapter. After all, most government employees are skilled workers and professionals, similar to the skilled and professional workers who were the focus of Chapter 2. It is also the case that since 1972, Title VII has applied to government employment.

Yet government employment is also very different. This is because government employers sometimes have goals that private employers do not. In some cases, government employers may perceive a need to pay back voters with government jobs. Another objective may be to provide role models for young people. For both of these reasons, racial signaling has far more importance in government employment than in private employment, where it matters only sometimes in white-collar employment and hardly matters at all in blue-collar jobs. Yet racial abilities also matter a lot in some government jobs, especially policing and teaching. Thus, the American tradition of racial realism in government jobs is rich and long—and it has become even richer and more elaborate in keeping with the increasing racial diversity of the population.

Yet government employment is also very different, and racial signaling especially important, because it relates to power and nationalism in unique ways. As described in Chapter 1, government jobs are deeply linked to a group’s sense of having a say in their destiny—a big factor in the perception of government legitimacy. Denial of representation and influence in government has been a factor in secessionist movements and ethnic nationalism around the world.¹ In some contexts, visible inclusion in the government (what political scientists called “descriptive representation”) can lead to better representation of previously excluded interests, allowing a wide and diverse segment of the public to feel included, and thus increasing the stability of the government.² Widespread racial unrest and violence are certainly not unknown in the U.S., and the racial violence of the 1960s, as well as the six straight days of fighting that took place in Los Angeles as recently as 1992, reminds us that it can happen here.

Another key difference with government employment, and a factor that makes it necessary to treat it separately, is that it involves a different legal regime. Both Title VII as well as the Constitution regulate government employment. The Fourteenth Amendment’s guarantee of equal protection of the laws creates, as we shall see, new possibilities. The framers of the Constitution and the Fourteenth Amendment, apparently preoccupied with other concerns, wrote nothing about “BFOQ” employer defenses. There is, consequently, no explicit constitutional statement of an exceptional lack of a BFOQ for racial discrimination in government employment as there is in Title VII. This clears the way for a judge-made race BFOQ. The problem for racial realism is that few judges have seized this opportunity: for the most part, courts allow hiring for racial abilities or signaling only in the context of law enforcement.

Nevertheless, racial realism (or its advocacy) is common in the practice of government employment, whether or not it is sanctioned by the law. This chapter focuses on three contexts of government employment. I begin at the top: elected positions and appointments made by elected officials. Technically, these are not “jobs” in the way other positions in this book are jobs. Presidents, members of Congress, mayors and the like are obviously not “hired”; they are chosen by voters. Furthermore, the appointments they make are not subject to Title VII any more than their election is governed by Title VII.³ At the federal level, for example, appointments are governed by the Constitution, which says little about the process other than that the President is to make the appointments with the advice and consent of the Senate. This constitutional provision was geared not toward equal opportunity, but toward avoiding the appointment of cronies.⁴

Yet these officials do work for us. They have jobs, and they draw paychecks. More importantly, if we are going to assess which strategies of managing race in employment are dominant in America, it is essential to understand how race matters at the top. What messages are our political leaders sending when they make appointments, and what messages are we sending to them when we elect them?

I will argue that our political officials entrusted with enforcing the laws—that is, executive branch officials—commonly make appointments based on interests in racial signaling and that there is a long history of this practice, though it used to be done more narrowly. While the only race that mattered was whiteness for most of the nation’s history, racial signaling with nonwhite appointments has occurred at the local level for more than a century, and at the federal level, it began with the Franklin Delano Roosevelt administration. In recent decades, it has expanded beyond black and white to include Asians and Latinos, and it can be seen in White House appointments, positions of party leadership, and appointments to the judiciary. I also review evidence that supports the notion that race has important effects in the highest levels of government.

Next, I show how racial realism has shaped advocacy and employment in two key areas where citizens regularly interact with government: policing and teaching. Here again there is a long history of racial realism in practice, and an even longer history of advocacy, particularly in teaching. The notion that police officers and teachers should be hired and placed with an eye toward their racial abilities and signaling continues to be alive and well, and has changed and expanded as American demography has become more racially diverse. There is evidence to support racial realism in both cases, though as usual, that evidence is mixed.

Finally, I will explore the ways that the courts have treated this issue, highlighting their use of constitutional jurisprudence to get around the problem of a lack of race BFOQ in Title VII, as well as their inconsistency in crafting these legal rules. Courts have been more open to finding a compelling interest to use race in the hiring and placement of police officers than in teaching—even in instances where minority officers have resisted assignments to mostly minority neighborhoods—as they have identified an “operational needs” compelling interest that justified racial realism. On the other hand, racial-realist ideas common in education, such as the notion of racial “role models” for students, have either found no support or have been explicitly prohibited.

I also explore the implications of one of the Supreme Court’s most important rulings on race and compelling interests. Though it dealt with racial preferences in university admissions, many hoped the case would act as a catalyst for changes in employment law and increase opportunities for at least government institutions to use race in their hiring. In 2003’s Grutter v. Bollinger, the Supreme Court articulated a governmental interest in racial diversity due to its civic benefits, which would seem to have relevance to both upper and the lower positions in government employment. However, despite initial speculation, the Grutter opinion had only a very limited influence on government employment practices.

In emphasizing non-Title VII “employment” at the outset—that is, the ways that elected officials use race in governing the country—I am very deliberately trying to highlight the inconsistency in our laws and the practices of government officials. There can be little doubt that the leaders of American government regularly practice racial realism, and this makes it all the more remarkable that civil rights law offers so little authorization for what these leaders so clearly believe is the right thing to do.

Racial Realism in Political Appointments: An American Tradition, Now Multiplied

When Americans choose political leaders, they tend to choose those who look like themselves. White Americans have typically supported white leaders, and other races supported leaders of their own race. The dominance of white elected leaders is thus largely the result of the numerical dominance of white voters. The election rates of black and Latino leaders increase when these groups become a majority or near majority in a district.⁵ Throughout American history, elected Asians in the Senate have for the most part represented Hawaii, the only state with an Asian plurality.⁶ It is not clear why voters tend to vote for their own race, but it would seem likely that many use racial-realist strategies when voting, for example when considering which candidates will have the ability to represent them effectively. Knowing this, elected officials tend toward racial realism when making appointments as well.

Early Racial Realism in Urban Politics

Racial signaling for nonwhites became entrenched in the politics of local appointments by the early 1900s, when nonwhite populations with voting rights became large enough to sway elections. The strategy was to use the racial signaling to show that voter support was appreciated and to suggest that particular races had a voice in the government. As explained by political scientist Harold Gosnell in his 1935 study of the growing importance of African-Americans in Chicago politics, “When the Negroes had developed a small professional and business class, when their importance to a given faction or party was strategic, when they found white politicians who were courageous enough to back them under the fire of hostile sections of the white public, they secured some local and state positions.”⁷ But a hundred years ago, racial signaling required a delicate balancing act. A mayor wanting to reward blacks for their support had to be careful to avoid angering racist whites, who generally would allow immigrant groups to get their patronage rewards or have their own candidates but resisted sharing power with blacks.

In 1915, Chicago’s mayor, “Big Bill” Thompson, who enjoyed great support from the city’s African-Americans, was thus forced to defend his appointment of blacks to some quality government jobs:

My reason for making such appointments were [sic] three fold: First, because the person appointed was qualified for the position. Second, because in the name of humanity it is my duty to do what I can to elevate rather than degrade any class of American citizens. Third, because I am under obligations to this people for their continued friendship and confidence while I have been in this community.⁸

In city politics, the issue was whether city hall could use racial realism in the same ways that it had used ethnic realism to benefit such white groups as the Irish or Italians. As Thompson’s defensiveness shows, it was not always an easy sell.

Origins of Racial Realism in the Federal Government: New Deals and Great Societies for African-Americans

Nonwhite voters found the federal government far less welcoming than cities like Chicago. They could find jobs, but opportunity was sharply limited well into the twentieth century. President William Howard Taft’s administration was the first to segregate the federal civil service, but Woodrow Wilson did the most to formally institutionalize that policy. It stayed segregated until the end of the Franklin Delano Roosevelt administration, though discrimination against African-Americans remained the rule until Lyndon Johnson took office.⁹

Despite his efforts to segregate, Taft was also a pioneer in that he was the first president to appoint an African-American to a position with policymaking power when he appointed William H. Lewis to be Assistant United States Attorney General.¹⁰ But it was FDR who, late in his first term, established racial realism as a normal management strategy at the federal level. In 1933, black leaders pressured Roosevelt to create a position for someone to oversee the treatment of blacks in his new programs. Clearly attempting a politically sensitive balancing act, the president chose a white Southerner for the position. Roy Wilkins of the NAACP told the administration that blacks “bitterly resent having a white man designated by the government to advise them of their welfare,” and the administration responded again, this time by adding Robert Weaver, a Harvard-educated economics Ph.D., to serve alongside the white official.¹¹

Despite the inauspicious start, there was progress. By 1935, Roosevelt had appointed more than forty African-Americans to low-level positions in cabinet departments and New Deal agencies. Several of them would meet regularly with the president to advise on racial matters. They were informally dubbed the “Black Cabinet.”¹²

Roosevelt’s policies helped move African-American support from the Republicans to the Democrats. Truman’s support of civil rights helped to consolidate this support. Eisenhower, however, managed to win 40 percent of the black vote and rewarded that support with the high-level appointment of E. Frederic Morrow as a White House adviser.¹³ Still, the title of Morrow’s memoir, Black Man in the White House, trumpeted the exceptional nature of a high-level black appointment in the 1950s.¹⁴

Lyndon Johnson, who did so much for African-American causes, also appointed the first black cabinet secretary, Robert Weaver, as the head of the new Department of Housing and Urban Development (HUD). The story behind Weaver’s rise from a low-level official in the Roosevelt administration to higher level posts under John F. Kennedy and Johnson, explored in rich detail by historian Wendell Pritchett, is useful to recount because it highlights the strategic thinking driving racial signaling in high-level appointments, as well as the meanings of both blackness and whiteness in an era when classically liberal nondiscrimination became the law of the land.

During the hard-fought 1960 campaign, Henry Cabot Lodge, the vice presidential running mate of Republican candidate Richard M. Nixon, announced to an audience in Harlem that Nixon would make history by being the first president to appoint an African-American to a cabinet position. Worried about his standing in the South, Nixon denied Lodge’s claim, and then Lodge denied he had ever made it. Kennedy said that making a appointment on the basis of race was “racism in reverse, and it’s worse.”¹⁵

Kennedy, however, won three quarters of the black vote, and—reflecting the hypocrisy that is so common in American racial politics—sought to reward blacks with federal appointments. Over the resistance of Southern members of Congress, Kennedy appointed Weaver, who had been a civil rights activist focused on segregation issues in New York City, to run the Housing and Home Finance Agency. One black newspaper, the Pittsburgh Courier, said approvingly that the appointment was a strike against housing discrimination, “because the new administrator, not appointed to the job necessarily because of his race, but because of his ability, will serve as a symbol.”¹⁶

Weaver’s rise would continue. Congress passed the Department of Housing and Urban Development Act in 1965, creating what came to be known as HUD. Johnson ultimately decided to appoint Weaver to the new cabinet post, but it took several months of analysis, as there were many concerns about his suitability for the job, some of which were related to race. For example, Senator Robert F. Kennedy (D-NY) argued that Weaver’s race was a problem in both the North and South, and both Kennedy and Johnson agreed there was “some advantage to having a white man in there.”¹⁷ Worrying about relations with Congress, Johnson told Roy Wilkins of the NAACP that “a white man can do a hell of a lot more for the Negro than the Negroes can do for themselves in these cities.”¹⁸ Yet Johnson was also very concerned about the racial signaling value of a Weaver appointment to black voters. He worried that appointing a white person would be a letdown to “little Negro boys in Podunk, Mississippi,” and that despite Johnson’s achievements for civil rights, blacks would see the Weaver snub and conclude that “when you get down to the nut-cutting … this Southerner just couldn’t quite cut the mustard—he just couldn’t name a Negro to the Cabinet.”¹⁹

While Johnson agonized about the decision, the black press urged him to move forward, with the Baltimore Afro-American arguing that Weaver would “wipe out big-city racial ghettoes,” the Chicago Defender maintaining that Weaver was the most qualified candidate, and the Pittsburgh Courier again playing up the racial signaling, stating that Weaver’s appointment “would mean that a Negro was a full-fledged member of the top power structure and would counteract much of the urban Negro revolt to the Republicans….”²⁰ Roy Wilkins warned in a public statement that failing to appoint Weaver “might galvanize the Negro community into thinking that in rejecting Mr. Weaver [Johnson] was rejecting them.”²¹

Johnson told his attorney general, Nicholas Katzenbach, “I doubt this fellow will make the grade” and predicted he would be “a flop,” but at the same time, Johnson could not resist the powerful value of racial signaling. Therefore, “We’ve got to get a super man for number two place [sic], and then send this fellow all around policy touring and let this second fella do the work with the Congress and with the President and with all the other people.”²² Satisfied with this plan, Johnson announced on January 13, 1966, that Weaver would be the secretary of HUD. Civil rights leaders and the black press cheered.²³ Johnson would also ingratiate himself further with civil rights groups when he nominated Thurgood Marshall to be the first African-American on the Supreme Court—a move the NAACP had lobbied for since the Kennedy administration.²⁴

As the story of Weaver’s appointment makes clear, presidents may make appointment decisions while seriously considering the racial implications of their decisions. It also shows a widespread expectation of racial realism in appointments, and media elites and advocacy groups typically lobby specifically for appointments, emphasizing the importance of racial signaling or racial abilities or both.

Moreover, advocates for African-Americans were far from alone in this kind of lobbying. Latino groups were especially active during the Johnson and Nixon administrations, directing much of their lobbying energy toward securing government representation.²⁵

By the late 1970s, presidents did not have to be pushed very hard. Jimmy Carter kept computerized records of the race and gender of his political appointments. During his term, 21 percent of his appointments were nonwhites (and 22 percent were women), including two black cabinet members (Donald F. McHenry was Secretary of the Army; and Patricia Roberts Harris was first Secretary of Housing and Urban Development and later headed Health, Education, and Welfare).²⁶

The Republican Move to Anti-Affirmative Action—and Racial Realism

The current period of racial realism in government, in which both Republicans and Democrats know that how they manage racial signaling with their elected leaders and appointed officials is important to party success, began in the 1980s with the Reagan administration. This is also the period when the Republican party moved squarely to define itself as the party of racial conservatism (which by the 1980s meant classical liberalism), and thus to take stands opposed to affirmative action and other policies supported by African-American leaders. Though appointments of nonwhites fell to 9 percent, less than half of Carter’s percentage (women were 37 percent of all appointments), Republicans’ stated opposition to affirmative-action liberalism did not mean opposition to racial realism, as I show below.²⁷

The main Republican strategy is to signal to white voters that they are not doing anything special for blacks—but also that they are not racists. Both parties increasingly appoint Latinos and Asians to top posts, and Republicans especially display their nonwhites as prominently as possible. As Paul Frymer has shown, the challenge for Democrats is to keep black voters loyal while not alienating white voters.²⁸ Democrats have continued to support both affirmative-action liberalism in policy and racial realism in practice, but by the 1980s, some leaders in the Democratic party were arguing that being too closely identified with the interests of African-Americans was hurting the party’s chances at the ballot box.²⁹

The primary way that Republicans have managed race has been to find, promote, and display people of color who criticize any or all racially liberal policies. We can see the importance of this racial signaling strategy for the modern Republican party in the meteoric rise of two African-Americans: renowned economist Glenn Loury and future Supreme Court Justice Clarence Thomas.

In the 1980s, Loury was building on his groundbreaking work on “social capital,” or how network ties play a key role in social mobility. He had begun to question the role of the government in ameliorating black inequality. If discrimination was not the key factor keeping blacks down, he reasoned, then government attempts to fight it, such as affirmative action, might be misguided.

Loury came to the attention of Republicans after his 1984 speech to a group of civil rights leaders in Washington, DC. To an audience that included Coretta Scott King and John Jacob, the president of the National Urban League, Loury put surprising emphasis on a pillar of conservative thought: that the black poor have a responsibility to help themselves, including in such areas as low educational achievement, high crime rates, and out-of-wedlock births. Many in his audience were appalled.³⁰

But conservatives loved it. The New York Times noted in a profile, “As a black critic of racial liberalism, Loury rose rapidly in Republican public-policy circles.” He sat with Reagan at a White House dinner, and his friend Bill Bennett, then Secretary of Education, offered him a position in his department as undersecretary. Other conservatives embraced Loury, including many identified with the neoconservative movement.³¹ Loury would go on to chair the board of a new initiative, the Center for New Black Leadership, organized to constitute a new and different (that is, not liberal) black political voice.

But Loury became disillusioned with conservatism, particularly on matters of race. In his view, the strand of conservative thought with which he identified, neoconservatism, which acknowledged at least some shared responsibility to bring about more racial equality, was losing its distinctiveness.³² The emerging conservative positions on race in the 1990s, such as the resurgence of biological explanations of poverty rooted in theories of racial differences in intelligence,³³ offended Loury both intellectually and morally. He turned away from conservatism, and conservatives then turned their backs on him.

Loury later authored a very personal and insightful reflection on his relationships with conservatives, focusing on Jewish neoconservatives. Writing in the pages of CommonQuest, a short-lived but bold magazine focused on African-American and Jewish relations, Loury wrote of the signaling value of his race:

That I existed—a black neoconservative with the courage to lend his voice to the chorus, even while being branded a traitor by other blacks—was a certain kind of statement…. [M]y “breaking ranks” helped to confirm [the neoconservative positions on race] as valid and non-racist. Interestingly, given the color-blind mantra which animated much neoconservative criticism of affirmative action policies, my color became part of my qualifications as an intellectual warrior. Had I been white, my “brilliant, perceptive, courageous” insights would surely have seemed a lot more like pedestrian, commonplace complaints…. How could I insist to my black detractors, who accused me of being disloyal, that they should simply respond to my arguments, when it was not only, or sometimes even mainly, the power of my arguments that mattered?³⁴

The racial signaling here was simple: if a black intellectual thought as Republicans did, then these thoughts could not be anti-black.

Supreme Court Justice Clarence Thomas’s story is similar to that of Loury—except that Thomas has not offered public reflections on the role of race in his ascendance, and he has stuck with the conservative program. For this, he has been richly rewarded. In his memoirs, Thomas recounts a phone call from the Office of Presidential Personnel in 1981. The caller invited Thomas to take a position as assistant secretary for civil rights in the Department of Education. Thomas was unenthusiastic, in part because he wanted the Department of Education to be abolished. But that was not the only reason for his reluctance: “I had no background in that area, and was sure that I’d been singled out solely because I was black, which I found demeaning.”³⁵ He chose to accept the position anyway, however, because he was interested in racial issues.

Thomas seemed to get over his concern that he was being offered government appointments on racial grounds. His memoirs make no mention at all of the fact that the Reagan administration chose him to be chair of the EEOC—after the Senate had rejected another black conservative candidate, Detroit lawyer William Bell, following criticism from civil rights groups.³⁶ This is all the more notable given that Thomas recalled that liberals were continually calling the Reagan administration racist. He himself urged more appointments for blacks, but offered no rationale for it, saying only that it was “important.”³⁷

Thomas’s account of his elevation to circuit court judge and later to the Supreme Court also reveals little sense that his race played much of a role in his advancement, even though there is a history of race, ethnicity, and other demographic variables influencing court appointments, and even though President George H. W. Bush chose Thomas to replace Thurgood Marshall, the only other black justice in Supreme Court history. According to his memoirs, Thomas asked White House counsel Boyden Gray whether race was the deciding factor in his nomination. According to Thomas, “Boyden replied that in fact my race had actually worked against me. The initial plan, he said, had been to have me replace Justice (William) Brennan in order to avoid appointing me to what was widely perceived as the court’s ‘black’ seat, thus making the confirmation even more contentious.” Brennan had retired earlier than expected, and the Bush administration had felt Thomas, who had been a judge only a few months, needed more seasoning on the circuit court (nevertheless, Bush would wait less than two years before putting Thomas on the Supreme Court).³⁸

Thomas’s mostly color-blind account of events surrounding his appointment contrasts sharply with the public discourse of the time. Lauding Thomas’s self-help ideology, conservative columnist Cal Thomas wrote, “It will be amusing to watch the civil rights establishment trying to oppose him on such a clearly all-American agenda.”³⁹ Pulitzer-Prizewinning political cartoonist Jim Morin drew Bush standing between Marshall and Thomas, pointing to each across his chest with opposite hands, and saying, “What this means is I’m anti-quota, but pro-coincidence!!”⁴⁰ The Brookings Institution’s Thomas Mann said, “I think that Bush has moved very cleverly,” but “it is disingenuous for Bush to argue that race was not a factor in his appointment of Thomas.”⁴¹ The U.S. News & World Report wrote, “The president, despite his frequently stated opposition to quotas, was acutely conscious of the need to preserve black representation on the court after Marshall’s retirement. Bush also wanted to show sensitivity to black concerns after opposing Democratic civil rights legislation as a ‘quota bill’ earlier this year.” The right-leaning magazine also quoted a Bush adviser, who gloated that after confirmation, “‘the two highest senior black officials in the federal government will be Colin Powell [chairman of the Joint Chiefs of Staff] and Clarence Thomas. Both were named by a Republican president, and both cases suggest that the route to success is self-help and black pride, not dependence on white society.”⁴² Legal scholar Michael J. Gerhardt wrote in 1992 that Thomas “has done little, if any, memorable work” in any area outside of civil rights,⁴³ and “no one took seriously the President’s characterization of Justice Thomas as ‘the best person’ in the country to serve on the Court.”⁴⁴ Perhaps the most extreme criticism came from Senator Bill Bradley, who compared Bush’s use of race in the Thomas nomination to a campaign ad used against Michael Dukakis that highlighted the saga of murderer Willie Horton, who raped a woman while on a Massachusetts furlough program. Bradley argued that Bush’s “tactical use of Clarence Thomas, as with Willie Horton, depends for its effectiveness on the limited ability of all races to see beyond color and, as such, is a stunning example of political opportunism.”⁴⁵

A scholarly account of the appointment reveals the predictable considerations of racial signaling. Bush asked staff to concentrate on finding “non-traditional” candidates, and they provided the names of two appeals court judges: a Latino, Emilio M. Garza, and Thomas. Chief of Staff John Sununu supported Garza on the theory that Garza’s appointment might help win Latino votes, while appointing Thomas would not entice the overwhelmingly Democratic black voters to cast ballots for Republicans. White House Counsel C. Boyden Gray supported Thomas because of Thomas’s solidly conservative views. Bush went with Thomas because of his conservatism, which would satisfy the most conservative Republicans, and also because Bush anticipated that being African-American would ease the path to confirmation of a conservative nominee.⁴⁶ It would be hard to oppose Thomas after Scalia and Kennedy had made it through the confirmation process, and African-Americans would have an especially hard time opposing him. Another factor was that the NAACP had privately said they would not oppose Thomas.⁴⁷

By the mid-1990s, Republicans were regularly using racial realism while criticizing affirmative action. Oklahoman J. C. Watts, who in 1994 became the first black Republican member of Congress from a southern state since Reconstruction, experienced a totally unsurprising meteoric rise in the Republican Party. Watts was young, smart, possessed a warm personality, and was a gifted speaker, but he had little experience and no leadership position in the House. Nevertheless, the party gave him opportunities to maximize his visibility to voters. As USA Today reported in 1998, “A party seen as hostile to minorities meanwhile basks in a symbol of diversity who is also a bedrock conservative,” and “Republicans showcased Watts at their national convention in 1996 and chose him to give their response to the president’s State of the Union message in 1997.”⁴⁸ It was the first time that an African-American gave the response to the State of the Union address. When the new Republican congressional majority made a move to retrench affirmative action, Watts played a key signaling role. He was a coauthor with senate leader and eventual GOP presidential nominee Robert J. Dole (R-KS) of a Wall Street Journal op-ed calling for an end to the controversial policy.⁴⁹ Like Thomas, Watts hardly reflects in his memoirs on the role of race in gaining him these high-profile opportunities.⁵⁰

Figure 1. Cartoon by Jim Morin shows George Bush during the nomination process for Justice Designate Thomas. Courtesy Jim Morin / The Miami Herald / Morintoons Syndicate.

Following Clinton’s unprecedented efforts at implementing diversity in his administration, which included African-Americans but also multiple Latinos and women, plus one Asian-American (which he called having a cabinet that “looks like America”⁵¹), the administration of George W. Bush went even further. He appointed consecutively two African-Americans to one of the most prestigious jobs in the administration, Secretary of State, with Condoleezza Rice, Bush’s National Security Advisor, succeeding Colin Powell (who had been Reagan’s National Security Advisor and also Chairman of the Joint Chiefs of Staff under George H. W. Bush and Clinton). Bush also appointed African-Americans as secretaries of Housing and Urban Development (Alphonso Jackson) and Education (Rod Paige). Latinos ran the Commerce Department (Carlos Gutierrez) and the Department of Housing and Urban Development after Jackson (Mel Martinez), and Asian-Americans oversaw Labor (Elaine Chao) and Transportation (Norman Mineta, who had been Secretary of Commerce in the last year of the Clinton administration).

The Impacts of President Obama and the Growing Latino Vote on GOP Racial Signaling Strategy

Two circumstances—the election of America’s first president with (known) African ancestry, and the rapid growth of Latino and Asian populations—have appeared to increase pressure on Republicans to signal openness to nonwhites.⁵² The Republicans installed the African-American former Lieutenant Governor of Maryland, Michael Steele, as Chair of the RNC. Steele bested another African-American, Ken Blackwell, the former Secretary of State of Ohio, as well as four white candidates. Though most party leaders (typically) downplayed the role of race in the process, some in the party openly celebrated the benefits of having Steele at the helm. Jim Greer, the chair of the Florida party, told the New York Times, ‘‘There certainly is an advantage of a credible message of inclusion if you have a minority as chairman.’’⁵³ Andy McKenna, chair of the Illinois Republican Party, declared that Steele would “show our ideas are good for people across the economic spectrum, across the ethnic spectrum,” and Kevin DeWine of the Ohio party predicted Republicans would see Steele’s election “as a significant sign of change.”⁵⁴ Joanne Young, a member of an advisory committee for the Washington, DC Republican Party, told the Washington Post, “He is very truly the representation of the party of Lincoln…. He will reach out to women and moderates. It’s a very positive message for the country to have an African-American who is at the helm of the Republican Party.” Upon election, Steele himself admitted: “We have an image problem,” because “We’ve been misidentified as a party that is insensitive, a party unconcerned about the lives of minorities…. That day is over.”⁵⁵

Steele’s rise coincided with that of another nonwhite Republican, Louisiana Governor Piyush “Bobby” Jindal. Like J. C. Watts, Jindal was smart, young, and a gifted speaker when Republicans tapped him to represent the party following a Democratic president’s State of the Union address. Choosing a white Republican (which, not counting four Cuban-Americans, was the only option if they were to choose a speaker from Congress) would, it was apparently believed, have made for an unpleasant contrast to Obama. Much of the enthusiasm for Jindal’s role was, accordingly, due to his Asian immigrant roots. A GOP strategist ticked off Jindal’s positive attributes—and then added, “The Republican Party very strongly wants to have a new look…. They’re saying, ‘We’re not just a party of old white guys,’ and he’s part of that appeal.”⁵⁶ Republican consultant Alex Castellanos told New York magazine that Jindal and Steele “look like the future.”⁵⁷

Latinos became the largest minority in 2009, and this, too, had impacts in American politics and racial signaling strategies. In a replay of the strategy of finding African-Americans to take stands against policies typically identified as benefiting that group, in 2010 the GOP was showcasing Latino candidates to counteract the party’s strong anti-illegal immigration stance. Republican leaders have gone out of their way to recruit Latino candidates to represent conservative white districts around the country, including Georgia and North Carolina.⁵⁸ The 2010 Republican candidate for the governorship of New Mexico, Susana Martinez, was an outspoken opponent of illegal immigration, arguing that undocumented immigrants should be prohibited from getting driver’s licenses, and she also defended a controversial Arizona law that required local police to detain suspected illegal aliens. She explained to the Wall Street Journal, “There is a stereotype that Hispanics must be in favor of different policies than I am expressing, and that’s not what I’m finding at all.”⁵⁹

The Latino backgrounds of even a few candidates were a plus for the national party as well. Whit Ayres, a Republican pollster, told the Washington Post, “Republicans need to be clear that they not only want but welcome Hispanics into the Republican Party, and having … prominent, successful Hispanic Republicans sends that message loud and clear.”⁶⁰ Similarly, Ayres told the Wall Street Journal: “Having Hispanic candidates be successful on the Republican ticket and visible nationally will go a long way toward rectifying … [the] damage” caused by the party’s restrictionist stance on immigration.⁶¹ Immigration restrictionist Congressman Lamar Smith (R-TX) penned a Washington Post op-ed in which he argued that opposing the legalization of undocumented immigrants was not hurting the GOP with Latino voters, while at the same time he emphasized the signaling power of the election of anti-legalization Latino governors, congressmembers, and a senator.⁶² In the run-up to the 2012 election, some conservatives openly discussed the strategy of using Cuban-American Marco Rubio as a running mate to lure Latino voters.⁶³

Following the 2012 election, where Republicans held their majority in the House but failed to take the Senate or unseat Barack Obama, Republican leaders began a period of analysis of the failure of their presidential candidate, Mitt Romney, to attract more than 27 percent of the Latino vote and 26 percent of the Asian vote. Reince Priebus, the replacement of Michael Steele as head of the Republican National Committee, created a “Growth and Opportunity Project” to research plans for the future of the party. Much of its report focused heavily on demographics and strategies to reach nonwhites, women and youth. Despite the new tone of urgency, the report called for more of the same racial realism strategies the party had used for decades. It recommended the creation of a Growth and Opportunity Inclusion Council, which would (among other things) “train and prepare ethnic conservatives for media presentations nationally and locally…. This new organization should encourage governors to embrace diversity in hiring and appointments to the judiciary, boards and commissions.”⁶⁴ The report also recommended that the RNC “hire Hispanic communications directors and political directors for key states and communities across the country” and “improve on promoting Hispanic staff and candidates within the Party,” using them in the media, and showing them “involved in political and budget decisions.”⁶⁵ The report recommended similar actions for Asian-Americans and African-Americans. A section on “candidate recruitment” was heavily focused on finding nonwhite Republicans, as well as women.⁶⁶ The party quickly began implementation of the report’s recommendations, hiring, for example, two Asian-Americans, Jason Chung and Stephen Fong, to focus on communications and grass roots campaigns aimed at Asian-Americans.⁶⁷

The Latino ascendance has impacted Democrats as well. The Democrats’ use of racial signaling in political appointments remains conventional, following the logic of patronage politics similar to that exemplified by Big Bill Thompson at the start of this chapter or Johnson’s appointment of Weaver. Because Democrats receive the majority of Latino votes (as well as the majority of black and Asian votes, though there are ethnic variations within the Latino and Asian blocs), they continue to offer appointments to members of these groups either to reward them for their support or because organizations acting on behalf of these groups pressure the Democrats to make these appointments. For example, the Congressional Hispanic Caucus lobbied Obama to choose a Latino to replace Supreme Court Justice David Souter when he announced his retirement. The Caucus explained, “appointing our nation’s first Hispanic justice would undoubtedly be welcomed by our community and bring greater diversity of thought, perspective and experience to the nation’s legal system.”⁶⁸ Other groups lobbying Obama for a Latino Justice were the National Hispanic Leadership Agenda, the Hispanic National Bar Association, and a group calling itself Hispanics for a Fair Judiciary.⁶⁹ After Obama chose Sonia Sotomayor for the Supreme Court, the New York Times was able to report on the wide ripple effect in a satisfied Latino community, though there was also skepticism that one high-profile appointment was enough to earn votes.⁷⁰ Obama allegedly sought diversity on the Court and especially a Latino justice well before the appointment, and he did appear to get a slight bump in support.⁷¹

Racial realism showed itself in the Sotomayor nomination in yet another way, when it became known that she had touted her own racial (and gender) abilities relative to a white male judge in a 2001 speech. She declared, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”⁷² Critics pounced on the statement, and it became an issue in the confirmation process. Perhaps most prominently, conservative commentator Rush Limbaugh and former Republican Speaker of the House (and 2009 Republican candidate for president) Newt Gingrich called Sotomayor’s comments racist. Gingrich wrote, “A white man racist nominee would be forced to withdraw,” and “a Latina woman racist should also withdraw.”⁷³ Meanwhile, Latino support for congressional Republicans after the nomination fell from an already dismal 11 percent approval to 8 percent.⁷⁴

Is Racial Realism Prevalent in Federal Appointments?

The foregoing should suggest that political elites regularly consider the race of their appointees and that they strategically manage racial signaling to achieve their electoral goals. Political scientists have only begun to study this phenomenon, however, so it is difficult to make broad, verifiable statements about how common this kind of racial realism is in appointments. The one area where it has been studied is in judicial appointments, and here most scholars are in agreement that appointments are made following racial-realist principles. Research has shown that presidents making appointments to the federal bench regularly consider race, as well as religion and gender.⁷⁵ While Johnson was the first to appoint an African-American to the Supreme Court, it was Jimmy Carter who made racial as well as gender diversity a major goal of his overall judicial appointment strategy, and established the strategy as normal in presidential politics.⁷⁶ Moreover, senators appear to believe that a Supreme Court Justice’s race matters to their electoral fortunes: Democrats were more likely to support the Clarence Thomas nomination if they had sizable black constituencies, and this was especially true if they were facing a reelection campaign.⁷⁷

More recently, studies have shown that appointments of minorities to district courts correlate with the percentage of minorities in the voting age population of a district, as well as with the numbers of potential minority campaign donors.⁷⁸ At the circuit court level, one study found that presidents’ decisions to appoint a minority judge correlates with ideology (conservatives being less likely to appoint minorities at this level) and whether a state in the circuit has a minority representative in Congress,⁷⁹ but it is important to note that there are fewer minorities who share a conservative than a liberal ideology (and Republicans will rarely appoint liberals in order to pursue racial signaling goals). An analysis of George W. Bush’s appointment record not surprisingly found that he pursued racial and gender diversity goals when they fit with his ideological commitments.⁸⁰

Does the Race of Government Officials Matter?

One important caveat must be kept in mind as we assess the effectiveness of racial realism in the top echelons of government: namely, that comprehensive evidence is difficult to obtain, and this for the simple reason that despite their growing presence in the electorate, there are still few nonwhite leaders in government, especially Asian-American leaders.⁸¹ Nevertheless, social scientists have studied this subject extensively, so much, in fact, that it is very difficult to summarize the massive number of findings on different racial groups and their impact on different aspects of government and politics.

The field can be divided into research on elected officials and research on appointees or bureaucrats. While my main interest is how political elites strategically use race when they “hire” and place different people through the appointment process, it is important to note that a very large body of research has also explored the ways in which the racial identities of elected officials themselves have effects on and importance to voters. The focus of this research has been on what political scientists call “descriptive representation” (when minority groups are represented by members of their own groups) and “substantive representation” (when those who represent minorities actually vote or take other actions that are in the minorities’ interests). This latter concept roughly conforms to what I have called throughout this study “racial abilities.”

Regarding this research on race and elected officials, it presents us first with evidence on the ways race matters to voters. One review of the literature found most evidence that whites and blacks both tend to prefer candidates of their own race, that whites tend to prefer lighter blacks over darker blacks, and that they say that they vote for African-Americans more than they actually do. Experimental study designs also show that race matters to voters. One experiment gave white subjects identical descriptions of political candidates, varying only the race of one of the candidates, and found that whites were more likely to vote for candidates when they were white rather than black. For these reasons, it is not surprising that only four blacks have ever served in the U.S. Senate, and only two since Reconstruction.⁸²

Then there is evidence regarding how the race of elected leaders affects the attitudes or behavior of the public. One study has shown that blacks living in regions where the mayor of the largest city is black are more politically informed: they are more likely to be able to name their local school board president, their representative in Congress, and their state governor. Moreover, those blacks who are more informed tend to be more active. Participation in voting, campaigning, civic associations, and contacting government officials goes up when there is a black mayor. Having blacks in office also leads black citizens to be more trusting of government. Black mayors have some opposite effects on whites: they are less likely to know their school board president or representative in Congress than they would be if the mayor were white.⁸³

Researchers have found racial signaling effects at varying levels of government. Blacks are more likely to approve of the job their member of Congress is doing if that member is black, and blacks represented by blacks tend to know more about their representative than when they are represented by other races.⁸⁴ Other evidence shows that black citizens are more likely to contact their legislative representative when that representative is black rather than white. White citizens are more likely to give favorable assessments to white representatives than nonwhite, and also are more likely to contact same-race representatives.⁸⁵

Research on the 2008 election of Barack Obama has found that the election was the most racially polarizing in American history, as he especially attracted racial liberals and repelled racial conservatives.⁸⁶ Black approval of Obama’s performance in office seems to be linked to his race, as blacks, regardless of their party and of their opinions on his policies, show more approval of Obama than do whites and more than blacks showed for President Clinton.⁸⁷

There is also growing literature on what has become known as the “Obama Effect,” which essentially refers to the power of Obama’s racial signaling to change attitudes or other social dynamics. This research has identified a variety of effects linked to Obama, his race, and the context of presidential power, expertise, leadership, and family in which he is continually portrayed. For instance, there is evidence that Obama’s election has had positive effects on racial attitudes. One study found that exposure to Obama via television led to reductions in anti-black prejudice among conservatives, who had the most prejudice to begin with. This was true even when the exposure came via conservative television programs critical of Obama.⁸⁸ On the other hand, an experimental study found that priming subjects to think about Obama was associated with no change in some measures of bias and actually seemed to produce increases in others associated with resentment of African-Americans.⁸⁹ Along these lines, an analysis of discrimination law cases found that Obama’s election had no reduction in filings, and in fact charges of racial harassment discrimination began to identify individuals who “made references to Obama in ways that demonstrate racial animus against blacks.”⁹⁰ One study found that black students improved their performance on standardized tests in periods right after extensive media coverage of Obama (specifically, his convention speech and his election), though a study using an experimental method found no difference in test performance between black students prompted to think about Obama before taking the test and those who were not so prompted.⁹¹

A more established line of research indicates that black legislators have racial abilities, showing more responsiveness to black interests than do white legislators. Though there are some prominent exceptions in the scholarly literature,⁹² one review concluded that much evidence indicates that black lawmakers are “far more likely than white Democrats to reflect the interests of their black constituencies” and are “also more likely to propose legislation consistent with African-American policy preferences.”⁹³ Black legislators also more often locate their offices near the African-American community and staff these offices with African-Americans who have ties to the community, and they prove more successful in delivering federal funding for local projects that benefit blacks, including funding for historically black colleges and universities.⁹⁴ Black and Latino members of Congress are also more likely than whites to exercise oversight of federal agencies in congressional hearings that deal with race or social welfare issues.⁹⁵ Another racial effect relates to employment: a study of Southern communities found a correlation between the numbers of blacks on the city council and blacks in local government jobs.⁹⁶

The evidence on Latino racial signaling and abilities is more mixed because of the heterogeneity of Latinos. Experts, activists, and Latinos themselves disagree on the meanings of the “Latino” or “Hispanic” categories, as both are made up of complex groupings of persons from Mexico, the Caribbean, Central America, and South America.⁹⁷ Here is how one leading expert on Latino politics summed up the state of knowledge in the early 2000s: “As was true in 1990, in 2004 Latinos do not behave as a political group united by ethnicity. Latinos do not see themselves as united politically and they report that they will not vote for a candidate because of shared ethnicity.”⁹⁸ One study has found that a candidate’s Latino identity has only an indirect impact on Latino voters.⁹⁹ Moreover, a study of California and Texas found that having Latino legislators in the state legislature or the House of Representatives was associated with only a modest decrease in Latino political alienation.¹⁰⁰

However, there are many recent studies showing that Latino identities do matter when it comes to filling upper-level federal positions and positions in more local governments. Districts with Latino populations, for example, are more likely to elect Latino candidates for state and congressional offices.¹⁰¹ A survey that asked respondents how they would vote in an election between Latino and non-Latino candidates (including scenarios where the Latino was of the opposite party of the respondent) found that Latinos with high degrees of ethnic attachment were more likely to support the Latino candidate when no party label was included, and somewhat more likely to vote for the Latino of the opposite party.¹⁰² This study also analyzed voting data in five mayoral elections in Los Angeles, Houston, New York, San Francisco, and Denver, as well as state legislative and congressional elections, and found that areas “with larger proportions of Latino registrants are more likely both to evidence high turnout rates when a Latino candidate is running for office and to vote for that candidate.”¹⁰³ The reason for the higher turnouts may be not only a response to candidate race; Latino candidates in this study were found to make greater efforts to mobilize Latino voters than other candidates.¹⁰⁴ While having a Latino representative or executive in office may have positive effects on voters (and an interview study found that Latinos in office tend to believe they have racial abilities to better represent Latinos¹⁰⁵), there is little evidence that Latinos in office represent Latinos differently than non-Latinos.¹⁰⁶

Studies of racial signaling or racial abilities on the part of appointees are far fewer, but they tend to show impacts. A survey experiment examined how same-race appointees affected three different measures of African-American and Asian-American racial identity: perceptions of shared racial fate, closeness to members of their own race, and a racialized political identity among blacks and Asian-Americans. Researchers showed half the respondents pictures of Democratic and Republican cabinet officials of their own race and included text highlighting their racial background (Ron Brown and Rod Paige to African-Americans; Norman Mineta and Elaine Chao to Asian-Americans), while the control group saw no pictures. For both African- and Asian-Americans, the individuals who viewed the same-race cabinet members were more likely to respond affirmatively on all of the three measures of racial identity.¹⁰⁷

Data on the racial signaling effects of nonwhite judges, a group of appointees with high status but low visibility, are mixed. For example, a study of the effects of black judges in Mississippi on black Mississippians’ attitudes of the fairness of the state courts showed little impact.¹⁰⁸ However, a study using an experimental survey technique has shown blacks to be more likely to view judiciaries as legitimate when they have black judges; this was true of even conservative blacks. Whites, including liberal whites, showed less support for a judiciary where blacks were well represented.¹⁰⁹ A study of Texas Latinos’ attitudes toward the U.S. Supreme Court before and after the appointment of Latina Sonia Sotomayor showed an increase in approval of the Court as well as betterthan-expected knowledge of the appointment, but showed Sotomayor’s appointment having little effect on the attitudes of non-Latino whites.¹¹⁰

Nonwhites may support appointments of nonwhite judges for a variety of reasons, but the jury is still out on whether nonwhite judges have racial abilities that white judges lack (e.g., the “wise Latina” that Justice Sotomayor had celebrated, discussed above). Evidence exists both for and against the existence of racial abilities in judging. Supporting the view that there are no racial abilities in judging, a comparison of sentencing in trials presided over by a black judge with those where a white judge presided found no significant differences, as both black and white judges tended to impose harsher sentences on black defendants than on whites.¹¹¹ Other studies have found no differences in sentencing, though the race of attorneys may be an intervening variable.¹¹² A study of Clinton appointees also found no difference between black and white judges’ rulings in cases involving black issues.¹¹³

But other studies show that the race of the judge can matter in the administration of justice. A study of Carter’s black appointees found that they cast 79 percent of their votes in favor of the criminally accused, while Carter’s white appointees voted similarly only 53 percent of the time (oddly, however, this same study found almost no difference between the rulings of black and white judges in race discrimination cases).¹¹⁴ An analysis of black and white judges’ decisions on criminal search and seizure—a potentially better measure of racial abilities because judges have more discretion on these cases—found that black judges were more receptive to allegations of misconduct by law enforcement officials than were white judges.¹¹⁵ Another study of black and white judges’ decisions to incarcerate in a large American city found, after controlling for factors such as a defendant’s prior criminal record, that white judges were less likely than black judges to send white defendants to prison, though black and white judges treated black defendants with equal severity. On the other hand, black judges tended to be more lenient to black defendants on other measures of sentence severity, such as duration of jail time and opportunities for probation.¹¹⁶

In short, though the results are not consistent and there are likely differences between groups, there is considerable evidence that party leaders are wise to manage the racial signaling of elected officials and appointees. The race of government officials does often impact the public’s attitudes. There is also considerable evidence that the race of government officials matters in how they do their jobs. In other words, voters have good reason to care about the race of government officials, and party leaders have good reason to use the racial-realist strategy extensively.

Policing While Black: Racial Realism and the Enforcement of Law

Could the government’s most basic duty—the provision of law enforcement, public safety, and justice—require attention to the race of law enforcement officers? The belief that good police work requires racial realism has a long history in the U.S. and may be more entrenched now than ever. Advocates speak from positions of authority, such as federal commissions or government positions, and also come from grass roots nonwhite communities. They argue that officers vary by race in their ability to police a neighborhood, or that the race of an officer can communicate a powerful signal of self-sovereignty because when the police look like the policed, there is at least an appearance of fair law enforcement.

Race Matching of Police: An American Tradition

Though current practices and advocacy reflect a departure in terms of scale and diversity, police departments in America have long hired and placed officers on the basis of race. Early moves in this direction were intended to produce effective policing, but they were more about managing racial signaling to whites than to nonwhites. In the nineteenth century, city governments doled out police jobs as rewards for political loyalty, and blacks received these patronage rewards on occasion. But they faced serious problems: some white officers, as well as white citizens, were so offended by the idea of a black man in a uniform—a black man with authority—that black officers faced violence, including physical assaults. Departments therefore segregated black officers and sent them to police black neighborhoods, because it was only there that they could work without disruption.¹¹⁷ As late as the 1950s, the two African-Americans on the police force in New Orleans could only patrol black neighborhoods, could not wear uniforms, and could not arrest whites.¹¹⁸

Yet even in these early years there were some who believed being black made some officers better qualified to enforce the law in black neighborhoods. This perception of racial abilities would become more prevalent among government officials and scholars over the next few decades.¹¹⁹ For example, as early as 1931, a report by the National Commission on Law Observance and Enforcement stressed the benefits of recruiting diverse police officers familiar with the language, habits, and cultures of ethnic groups.¹²⁰

It was the racial violence of the 1960s, however, that boosted racial realism in policing to the national agenda. Studies of the violence almost always found that even in the best of times, there was a disconnect between white police forces and black neighborhoods, with blacks often feeling that they were under foreign and hostile occupation. At worst there was brutality and other abuses of power by police.

It was often a rumor of police brutality that set off the 1960s megariots (many called them rebellions) in the urban North, including the riots in Harlem and Rochester in 1964, in the Watts section of Los Angeles in 1965, and in Detroit and Newark in 1967. There were also hundreds of other riots/rebellions in cities big and small. Some caused tens of millions of dollars in property damage, almost all of it in predominately black neighborhoods. Thousands were injured and/or arrested.¹²¹

Observers increasingly saw racial mismatches between police and neighborhoods as a major part of the problem. Lyndon Johnson’s aides communicated from the front lines that the whiteness of the police and the resulting lack of racial understanding were creating tensions in black communities and called urgently for more black faces on the police and National Guard forces trying to maintain order.¹²² Whether the strategy was racial signaling, racial abilities, or both was unclear, but it was certainly more an instance of racial realism than affirmative action when New York installed an African-American to head the Harlem precinct after the riot there, and created a new post of “Community Relations Coordinator” in Harlem. The African-American officer appointed to that post was asked by the New York Times if race was a factor in his appointment, and he replied, “Candidly, I suppose it was. And that’s all right with me. The important thing is I think I can improve the situation there.”¹²³

Similarly, in 1966, New York City used a $2.9 million federal grant to recruit one thousand disadvantaged blacks and Puerto Ricans to the police force. According to the New York Times, this effort aimed to “lessen the odds of race rioting.”¹²⁴ A New York police chief explained, “The recruitment of Negroes into the department is not simply opening up jobs to all members of the community, but also a political necessity for pacifying the Negro community and winning the support of its members.”¹²⁵

A year later, Lyndon Johnson’s President’s Commission on Law Enforcement and the Administration of Justice extolled the value of racial signaling in the police force. Calling for “a sufficient number of minority-group officers at all levels of activity and authority,” the report stated that “a department can show convincingly that it does not practice racial discrimination by recruiting minority-group officers, by assigning them fairly to duties of all sorts in all kinds of neighborhoods, and by pursuing promotion policies that are scrupulously fair to such officers. If there is not a substantial percentage of Negro officers among the policemen in a Negro neighborhood, many residents will reach the conclusion that the neighborhood is being policed, not for the purpose of maintaining law and order, but for the purpose of maintaining the ghetto’s status quo.” Moreover, if this effort was to show an advance over the old policy of a segregated police force, it would need to be balanced by a strategy of placing black officers in white neighborhoods as well.¹²⁶

This report also cited a need for the racial abilities of black officers, explaining that a “lack of understanding of the problems and behaviors of minority groups is common to most police departments” and is a “serious deterrent” to effective policing. The report concluded that “a major, and most urgent, step in the direction of improving police-community relations is recruiting more, many more, policemen from minority groups.”¹²⁷

A better-known federal government report, though one that came to similar racial-realist conclusions, was that of the National Advisory Commission on Civil Disorders, more popularly known as the Kerner Commission. As it did for journalism, the report also gave prominent support to racial realism in policing. Black officers have special abilities, the report argued, because they “can increase departmental insight into ghetto problems, and provide information necessary for early anticipation of the tensions and grievances that can lead to disorders.” In addition, “There is evidence that Negro officers also can be particularly effective in controlling any disorders that do break out.”¹²⁸

Other official bodies have fostered the notion that effective policing requires racial realism in hiring and placement. A 1973 report by the National Advisory Commission on Criminal Justice Standards and Goals, for example, added its voice to previous commission findings, stating that “minority officers are better able to police a minority community because of their familiarity with the culture.”¹²⁹

At around the same time, Congress was debating amendments to Title VII that would expand its coverage to government employment. While Senate and House reports noted the value of having nonwhites in a variety of government positions, law enforcement received special attention. Though the bill supported a classically liberal approach, the Senate Report stated in 1971, “The exclusion of minorities from effective participation in the bureaucracy not only promotes ignorance of minority problems in that particular community, but also creates mistrust, alienation, and all too often hostility towards the entire process of government.”¹³⁰ The House echoed this theme: “The problem of employment discrimination is particularly acute and has the most deleterious effect in these governmental activities which are most visible to the minority communities (notably education, law enforcement, and the administration of justice) with the result that the credibility of the government’s claim to represent all the people is negated.”¹³¹

Nearly twenty years later, the message was the same following some incidents of police brutality in Los Angeles, most notably the beating of Rodney King, which was caught on grainy, graphic video. A report on the Los Angeles County Sheriff’s Department called for better nonwhite representation on the force and better utilization of the racial abilities of nonwhite officers. It argued, “These officers have important knowledge, experience and insights regarding effective and sensitive community-based policing…. Their cultural knowledge and communication skills could be invaluable in defusing tensions on a street corner or in a jail cell…. Many minority officers have a broad historical and societal perspective that is most useful in the Department’s efforts to increase the sophistication and effectiveness of its community-policing efforts.”¹³²

Though conservatives can be suspicious of racial realism in policing,¹³³ George W. Bush’s Justice Department declared in 2001: “A diverse law enforcement agency can better develop relationships with the community it serves, promote trust in the fairness of law enforcement, and facilitate effective policing by encouraging citizen support and cooperation.” More practically, it advised: “Law enforcement agencies should seek to hire and retain a diverse workforce that can bring an array of backgrounds and perspectives to bear on the issues the agencies confront and the choices they must make in enforcing the law.”¹³⁴

While many advocates speaking on behalf of the government have long supported racial realism in policing, local groups advocating on behalf of nonwhites have done so as well.¹³⁵ In Brooklyn in 1964, the head of a group called the African Nationalist Pioneer Movement stated: “The assignment of more Negro patrolmen to the Bedford-Stuyvesant area will go a long way to improve community relations with police.”¹³⁶ When the city put a black officer in charge of its largest station in Harlem, one civil rights leader remarked in 1966 that the effort “has made a dramatic difference. It’s more difficult for the inhabitants of Harlem to look upon the police as their enemy when he’s the same color as they are.”¹³⁷ The most common pattern for advocacy of this kind would be an egregious incident of police brutality spurring calls from local civil rights leaders and African-American ministers for an increased black presence on the ground and in the police administration. For example, after the NYPD’s 1997 beating and torture of Haitian immigrant Abner Louima, the Giuliani administration worked with civil rights groups on a plan to move more black police officers to the Brooklyn precinct where the torture occurred (see below).

Some government officials have discussed the racial abilities and signaling benefits of African-American cops in African-American neighborhoods in interview studies. An analysis of black economic equality in the South found this perspective to be common. One white police chief explained, “We need to understand all citizens and can’t understand blacks without having blacks on the force…. It helps us deal with a culture we [whites] don’t understand. Blacks can be loud, boisterous, and in your face—most white officers don’t understand this.”¹³⁸ A black officer in Quincy, Florida, explained, “When it gets ‘hot’ in black areas, they [blacks] want and need black officers…. Blacks frown on white police … they’re a symbol of white control and power. Black police are trusted more and have an attachment to blacks.”¹³⁹

It should be noted that some police departments have sought to take advantage of racial abilities and signaling by means that stop short of hiring actual police officers. One strategy is to set up a “multicultural storefront” police station, staffed at least in part with “community service officers” who share the race and ethnicity of the community. This strategy allows for closer day-to-day contact and better relations, and arose partly in response from public pressure to “do something visibly special” for minorities.¹⁴⁰ It also avoids the problem of finding minorities who can pass the various background and aptitude tests required for all police officers. Though not actually police officers, community service officers can act as cultural emissaries for the police department as well as signal some degree of self-sovereignty.

Another strategy is to institute advisory boards or appoint special assistants to the chief representing different ethnic and racial groups (as well as women, gays, and lesbians). These representatives are intended to serve as conduits of racial and ethnic culture and knowledge.¹⁴¹ Though citizen advisory boards were first set up in the late 1970s, and nearly 90 percent of departments in big cities have some citizen oversight for complaints, there is very little evidence as to whether or not the boards have an impact.¹⁴²

The Evidence: Do Cops Have Racial Abilities? Does Racial Signaling Work?

Racial meanings are deeply woven into the interface between the police and the American public. Opinion polls reveal that blacks, whites, and Latinos have very different attitudes toward the police. These divergent opinions are especially apparent when the local headlines are dominated by an incident of police brutality. Shortly after the February 1999 police killing of Amadou Diallo, for example, a New York Times poll found that 72 percent of blacks and 62 percent of Hispanics, but only 33 percent of whites thought most officers use excessive force. Similarly, a June 1999 Quinnipiac College poll found that while only 25 percent of whites thought police brutality was “very serious,” 81 percent of blacks and 59 percent of Hispanics thought so.¹⁴³

For some, this is already ample grounds to justify racial realism, but there is more direct evidence that specifically supports the strategy of racial signaling. Large numbers of blacks and Latinos appear to believe that a police officer’s race matters. A comprehensive survey study of attitudes toward race and policing conducted in 2002 found that nearly 70 percent of blacks thought there were differences between black and white police officers, while about 45 percent of Latinos saw differences, and about 38 percent of whites did. Almost half of blacks thought that Latino officers were different. About 30 percent of Latinos saw a difference between Latino and white officers, slightly more than whites did.¹⁴⁴ This study also found that all three groups tended to see white cops as “tough/arrogant/insensitive” and black cops as “courteous/respectful/understanding,” though this pattern was most evident among black respondents.¹⁴⁵ As one black respondent explained, “Black officers are more empathetic toward citizens. Black officers are taught, by virtue of their racial background, not to have bias or prejudice, whereas their white counterparts are not. Black officers are taught … not to lump everyone into one category…. White officers are taught that certain people always behave a certain way” (original emphasis).¹⁴⁶ Though only 5 percent of blacks and 4 percent of Latinos wanted exclusively black and Latino officers, respectively, majorities of blacks and Latinos perceived race to matter enough that they preferred a racial mix of officers in their neighborhoods.¹⁴⁷ These respondents lauded racially mixed policing teams as a means whereby nonwhites could educate whites on the job, and associated them with “impartiality,” “fairness,” and “checks and balances.”¹⁴⁸ Given these attitudes, it is not surprising that one study found that Latinos in Houston would sometimes wait days until they thought they saw a Latino officer before they were willing to report a crime.¹⁴⁹

There is also evidence that police officers themselves, as well as representatives of the nation’s police departments, believe racial realism is sound strategy in policing. For example, one interview study of fifty black police officers in the South found that the officers were “nearly unanimous” in believing they had special insights into problems.¹⁵⁰ As one stated:

I really believe that African Americans, because we have always been on the receiving end of a lot of that stuff, that we really have a deeper level of understanding and compassion for other people. I really think it’s difficult for whites today to really see even the subtle vestiges of discrimination and prejudices…. I’m just saying that I think whites by and large have real difficulty, really being able to perceive and understand people who have to walk through that stuff, day after day after day.¹⁵¹

The argument that nonwhite officers can better understand nonwhite citizens also came up repeatedly in my research assistants’ interviews with police officials from around the country. Representatives from eight of the nine large city departments with whom we spoke cited a goal of racial balance in the police force, and four of the nine described the racial ability of understanding of people and neighborhoods as one of the reasons. The liaison to Asian police officers in a major West Coast city, for example, told us that his department tried to employ the same percentage of minorities as lived in the city, explaining that a major challenge for police in his city was “the trust factor,” and that a way to gain minority residents’ trust was to employ officers who “resemble them or understand their cultures and traditions.” He explained, “I think if we have a specific Latino officer in a Latino community that’ll actually go a longer way. The reason why is tradition, cultural, history, language. Those are just barriers that officer will not have to deal with.”¹⁵²

We can see, then, that the public and many officers and their leadership seem to care a lot about race and offer support for at least some hiring and placing based on racial-realist principles. Are they right to do so?

Despite the claims of government bodies, civil rights leaders, city residents, and some police officers themselves that nonwhite officers have special racial abilities of understanding, social scientists have had trouble demonstrating that the phenomenon is real and has significant effects on policing. Here we have the benefit of two especially comprehensive, authoritative reviews of an extensive literature. First, legal scholar David Sklansky’s analysis of the research on police officer race shows, first, that there was an impressive increase in the percentage of nonwhite officers in major cities across the U.S. between 1967 and 2000. For example, New York City’s police force increased from about 5 percent to 35 percent minority; Chicago and Philadelphia both increased from around 20 percent to 40 percent; Detroit went from 5 percent to 65 percent minority; and San Francisco from 5 percent to 40. But when it came to the effects of this diversification, Sklansky found contradictory conclusions in the literature. He noted, on the one hand: “There are studies finding that black officers shoot just as often as white officers; that black officers arrest just as often as white officers; that black officers are often prejudiced against black citizens; that black officers get less cooperation than white officers from black citizens; and that black officers are just as likely, or even more likely, to elicit citizen complaints and to be the subject of disciplinary actions.” On the other hand, “there are also studies concluding that black officers get more cooperation than white officers from black citizens; that black officers are less prejudiced against blacks and know more about the black community; and that black officers are more likely to arrest white suspects and less likely to arrest black suspects.”¹⁵³ Despite the mixed findings, Sklansky noted that scholars typically have viewed the evidence as indicating that officer race does not correlate with policing behavior.

The prestigious National Research Council has also assessed the evidence and pronounced authoritatively that while there is much evidence that officers of different races tend to have different occupational outlooks and different knowledge about neighborhoods, these factors do not seem to translate into differences in behavior. For example, there is little evidence that race affects the use of coercion or deadly force, whether an officer acts with respect toward citizens, comforts a citizen, or grants a citizen’s request to control someone. Noting a study that found that whites were more likely to arrest nonwhites and that nonwhites were more likely to arrest whites, especially for minor crimes such as drunk driving, prostitution, and public disorderliness, and that a move to same-race policing would lead to a decline in arrests of 15 percent, the National Research Council argued that these results could reflect differences in beat and shift assignments and expressed other doubts about the study’s methodology as well.

Even the skeptical Council researchers were not yet willing to walk away from racial realism, however. The Council’s assessment ended with the suggestions that race might affect the officers themselves, that researchers should compare departments where minorities are in the majority with those where they are in the minority, and that the effects of the race of the officer might still depend on the race of those with whom they interact.¹⁵⁴

It should also be noted that whatever their beliefs about their own racial abilities, nonwhite police officers themselves have not been unanimous in wanting assignment to racially concordant neighborhoods. The interview study of black police officers found that though civil rights organizations pushed for more black officers in black neighborhoods and black officers said they encountered less hostility there than white officers, some black officers nevertheless saw their race as a liability in black neighborhoods. One explained, “Even to this day a lot of blacks still accuse police officers, black police officers of being programmed, instruments of white authority.”¹⁵⁵ Another complained, “You’ve got to work three times as hard to convince the African-American community that you’re not a sellout and you’re truly there to do a job and to do the best that you can to help them.” This was true, he explained, “because the distrust of police officers has been there so long.”¹⁵⁶ Another negative for police departments’ deployment of racial signaling is the pressure put on the small numbers of black officers. Departments typically put them in high visibility positions to signal that the department is progressive and fair. As one black female officer explained, “Everything fell on my shoulders. And they used me royally.”¹⁵⁷

“From Their Own Point of View”: Does Equal Education Require Racial Realism in the Management of Teachers?

Perhaps the most dramatic case for racial realism in government employment can be made in the field of education. The progressive argument for having students taught by teachers of their own race is far less known than the progressive argument for integrated schools. Yet when the Supreme Court issued its historic ruling in Brown v. Board of Education that declared segregation illegal, there was already a long tradition of advocacy for the notion that black teachers were best for black children. Viewed with a wide-angle lens and a over a long sweep of American history, the drive to racially integrate American schools looks anomalous, and racial-realist arguments for the management of teachers appear to be the norm. What is new is that these arguments have become even more pronounced and nuanced as the U.S. Latino population has grown.

The Tradition of Black Teachers for Black Students

It was an argument that came from experience rather than principle. In the nineteenth century, many northern states maintained integrated schools, a practice that was frequently disastrous for black children. As early as the 1830s, black parents and progressive Northerners were urging that schools be segregated and teachers racially matched to students. For many black parents, then, it was integrated schools that were the problem.

A major stressor was the racist attitude of many teachers. Some openly referred to black students as “niggers,” and in schools in Boston and Cleveland in the mid-1850s, white teachers punished misbehaving white students by making them sit in the “nigger seat”—a seat next to a black student.¹⁵⁸ A white principal in Chicago in the 1930s called black students “niggers” and warned them that if they caused trouble he would send them “back to the jungle where you belong.” In 1940s Portland, Oregon, a white teacher said that academic achievement was not to be expected of blacks as they were really only good at dancing and sports.¹⁵⁹

White teachers also tolerated (and probably encouraged, if only indirectly) white students’ tormenting of blacks. A school committee report from Providence, Rhode Island stated, “It is deeply to be regretted that one of the most popular amusements for the young at the present day, consists in caricaturing and holding up to ridicule, the peculiarities and eccentricities of a long-neglected and downtrodden race. Our children are taught to be merry and indulge in hilarity over the weaknesses and follies of a people that have the strongest claim for sympathy.”¹⁶⁰

Starting nearly 200 years ago, then, many black leaders were joining black parents in questioning the value of integrated schools. Progressive black intellectuals made the move to racial realism when they argued that whites could not effectively teach black kids and would make unequal demands of white and black students. An attendee at a Pennsylvania State Equal Rights League meeting said in 1865 that “experimental knowledge” showed that “colored children make greater advancement under the charge of colored teachers than they do under white teachers,” and that “therefore we consider it to be our incumbent duty, as lovers of the advancement of our race, to see to it, that our schools are under the charge of colored teachers.”¹⁶¹ A movement in the 1880s, strongest among black Baptists, maintained that whites who taught blacks were prejudiced, incompetent or both. For example, Rev. E. K. Love, the pastor of Savannah’s First African Baptist Church, said that white teachers could not know black students on a social basis, and were therefore “incompetent to teach the Negroes civil rights, equity and justice,” that they taught that “all the heroes and heroines were white,” and that they took blacks away from their cultural roots. “Our race battles must be fought by Negroes alone,” he argued. “Negroes must lead and teach Negroes.”¹⁶² Similarly, William Kelley of the Milwaukee Urban League argued in 1939 that when black students had black teachers they learned to value hard work and good jobs became possible for them.¹⁶³

W.E.B. DuBois, the black scholar and activist, was also a prominent and forceful advocate of racial realism in the management of education. In an essay entitled “Does the Negro Need Separate Schools?”, he argued that the answer was yes as long as whites lacked the skills or judgment to treat black students equally. The “proper education of the Negro race” required a “sympathetic touch between teacher and pupil; knowledge on the part of the teacher, not simply of the individual taught, but of his surroundings and background, and the history of his class and group; such contact between pupils, and between teacher and pupil, on the basis of perfect social equality, as will increase this sympathy and knowledge; facilities for education in equipment and housing, and the promotion of such extra-curricular activities as will tend to induct the child into life.” Issuing an early call for what later would be called Black Studies and Afrocentric education,¹⁶⁴ DuBois urged blacks to study such topics as slavery, emancipation, Reconstruction, and the current situation “from their own point of view.” He claimed this “separate negro school, where children are treated like human beings, trained by teachers of their own race, who know what it means to be black in the year of salvation 1935, is infinitely better than making our boys and girls doormats to be spit and trampled upon and lied to by ignorant social climbers, whose sole claim to superiority is ability to kick ‘niggers’ when they are down.”¹⁶⁵

DuBois was sometimes explicit that blacks and whites saw the world differently and thus taught differently—even suggesting these racial abilities were not only real but permanent. When a majority of black students at Lincoln University, a black college in Pennsylvania, opposed having black professors, DuBois blamed it on the white professors, who “certainly have not actively and conscientiously instilled in their students a knowledge of what the Negro has done in the past, or what he is doing now, and of what he is capable of doing. Indeed, this sort of thing is just what white men in the very nature of the case cannot teach even if they tried, just as Negro professors alone cannot wholly and completely present the case and attitude of the white world.”¹⁶⁶

Despite these concerns, the major civil rights organizations, supported by black newspapers in the North, continued to call for an end to mandatory school segregation.¹⁶⁷ By the 1950s, the Supreme Court was moving to strike down its legal basis. Given the abusive treatment that black students were receiving in so many integrated schools in the North, it is ironic that the crux of the Court’s argument was that segregation hurt black students’ self-esteem and thus their ability to learn.

In 1954’s Brown v. Board of Education of Topeka, the Court dealt with elementary school children who were forced to attend segregated schools. The NAACP lawyers representing the children convinced a unanimous Court that schools segregated by law could never offer equal protection of the laws. Pointing out that education was “perhaps the most important function of state and local governments” due to its key role in making citizens, “awakening the child to cultural values,” and preparing him or her for professional life,¹⁶⁸ the Court said that a child deprived of education was deprived of a chance to succeed in life. The decision drew heavily on the U.S. Supreme Court’s own precedents in previous segregation cases, as well as on a Kansas court decision that ruled against the black children but also stated that segregation gave students a sense of inferiority that weakened their motivation to learn.¹⁶⁹ Controversially, the Court also cited social science evidence that seemed to show that black students received negative messages when the state mandated segregation and it made them perform less well.¹⁷⁰ This, the Court said, was a violation of the Fourteenth Amendment’s guarantee of equal protection of the laws.¹⁷¹

Southern schools dragged their feet and managed to avoid doing much of anything to integrate schools for the next ten years. Real desegregation did not occur until the mid-sixties, when the Civil Rights Act of 1964’s Title VI declared that school districts receiving federal funds could not discriminate on the basis of race, national origin, or religion. It was only then that southern schools began to respond.¹⁷² It was also then that people began to notice what many black parents and intellectuals had noticed more than a hundred years earlier: white teachers for black students might not be such a good thing. Desegregation would be followed by fond memories of the virtues of segregated schools, especially of the caring and sense of community they provided.¹⁷³

Advocates for the racial abilities of black and Latino teachers were heard from soon after the historic Brown v. Board decision, and by the late 1950s schools in Detroit and Milwaukee practiced racial realism in the hiring and placement of teachers. In New York City, school reformers argued that black and Puerto Rican teachers “had something to give” to minority students that white teachers could not or would not provide. Nonwhite teachers, these reformers insisted, better understood the cultural backgrounds of nonwhite students, and the failure of many minority students in city schools was the result of racist white teachers’ incompetence or lack of commitment. Though the NAACP resisted these reforms for fear that they would limit the opportunities of blacks to teach whites, by 1966 the New York school district’s director of personnel agreed that “because of the kind of society we have had, unfortunately, it may be that a Negro teacher, generally, may have a greater likelihood of developing rapport, and if this is an important characteristic, then we ought to try to tap it to the extent possible in getting this characteristic into our schools.”¹⁷⁴

Though many of these concerns were first voiced on behalf of African-Americans, they had parallels for Latino students. In New York, ASPIRA (not an acronym), an organization devoted to helping Puerto Rican youth, issued a report stating that in the growing number of classrooms filled with Spanish-speaking students in New York and other cities, “the sense of estrangement that often baffles both the teacher and her students would be relieved by the presence of a Puerto Rican teacher.” “The sooner we get Puerto Rican teachers into our schools,” it concluded, “the sooner we will make headway” in improving Puerto Rican students’ academic success.¹⁷⁵

Meanwhile, on the other side of the country, there were similar demands, but from a different Latino group. Mexican-American parents were complaining that white teachers treated their children as “thirdclass citizens.” In their view, their children were better off working in the fields than in schools staffed with white teachers.¹⁷⁶

The call for racial realism in teaching expanded not only to minorities besides blacks, but also up to higher levels of education. Protests swept college campuses across the country, as black, Latino, Asian-American and Native American students made demands for their own recognition on campus. Student protesters often used separatist arguments and demanded specialized courses taught by and for nonwhites. But at the higher education level there was more second-guessing of this strategy. Many felt that separating the new “ethnic studies” departments off racially from the rest of campus would make them more vulnerable to critics intent on rolling back their gains. However, the architects of ethnic studies typically argued that the departments had to get beyond a “white mind-set” and put in place an overt agenda of helping ethnic communities that would encourage a large representation of nonwhite faculty in ethnic studies departments.¹⁷⁷

In more recent decades, calls for racial realism in teaching continue to be made, though the tone is more professional and less passionate. In the 1980s and 1990s, the rapidly growing presence of minority students in the nation’s schools added new urgency to the demands for more minority teachers. Foundations, research organizations, and academics became the most consistent advocates. In 1986, the Carnegie Forum on Education and the Economy declared: “The race and background of their teachers tell [students] something about authority and power in contemporary America. These messages influence children’s attitudes towards school, their academic accomplishments and their views of their own and others’ intrinsic worth. The views they form in school about justice and fairness also influence their future citizenship.”¹⁷⁸ In 1987, Patricia Albjerg Graham, then Dean of the Harvard Graduate School of Education, advocated a massive effort to produce large numbers of black teachers, explaining, “It is important for black children to have at least some black teachers to provide valuable role models of successful black people who are contributing members of society. Black teachers are also vital role models for non-black students who need to learn the same lesson….”¹⁷⁹ Historian John Hope Franklin had a similar view, as he called the need for black teachers “desperate,” predicting that if a decline in the numbers of black teachers continued, it would “mean not only that blacks will drop out of one of the oldest and most honored professions, but also that young blacks will be deprived of the role models and a special kind of caring that are essentially irreplaceable. And the drop-out rate among them will continue.”¹⁸⁰

A 1989 National Education Association report emphasized demographics and teaching efficacy as drivers of a racial-realist strategy. “With the percentage of minority students rising,” it warned, “the need for minority teachers is becoming increasingly urgent. If school systems across the country that serve large numbers of minority students are to remain viable, they must increase the number of minority teachers, and they must do it quickly.” The report cited research identifying differences in black cognitive styles, which were said to be more universalistic, intuitive, and person-oriented than what was required by schools (which tended to be a more analytical, sequential, and object-oriented cognitive style). Other benefits to follow from hiring more minority teachers were said to include a more stimulating pedagogy and a blending of community and school curriculum.¹⁸¹ Also in 1989, a Stanford University Committee on Minority Issues argued that creating a multiracial campus was more important than ever because “More minority faculty members are needed as role models and mentors for undergraduate and graduate students.”¹⁸²

Despite a 1987 Supreme Court opinion ruling out some racial-realist hiring (see below), urgency on the issue continued into the 1990s. In 1996, the National Commission on Teaching and America’s Future, a research advocacy organization, published a report that stated “across the nation there is a critical need for many more teachers who reflect the racial and cultural mix of students in schools.”¹⁸³ The Education Commission of the States, a clearinghouse of education research and policy advice run by and for state policy elites, also issued warnings about the shortage of minority teachers.¹⁸⁴ Its Director of Policy Studies, Barbara J. Holmes, argued that the shortage would dampen the aspirations of nonwhite students and limit their cultural knowledge of America and of their own heritage, and noted that more than half of all states were seeking to address this problem.¹⁸⁵

The states of California and Texas, both facing large and rapidly growing Mexican American populations, made perhaps the strongest effort in this direction. California’s Education Code 44100 justified efforts to hire more minority teachers by emphasizing their racial signaling and racial abilities. The law states: “It is educationally sound for the minority student attending a racially impacted school to have available to him or her the positive image provided by minority classified and certificated employees. It is likewise educationally sound for the child from the majority group to have positive experiences with minority people, that can be provided, in part, by having minority classified and certificated employees at schools where the enrollment is largely made up of majority group students.” Moreover, “Lessons concerning democratic principles and the richness that racial diversity brings to our national heritage can be best taught by staffs composed of mixed races and ethnic groups working toward a common goal.”¹⁸⁶

Similarly, in 1994, the Texas Education Agency issued a report that expressed alarm at the fact that 77 percent of all teachers in the state were white, while the student body was 50 percent nonwhite. The report explained that diversity was important for three reasons that touched on both racial signaling and racial abilities. First, nonwhite teachers were needed “because students need role models of like characteristics in professional positions, and all students need exposure to professionals who reflect the diversity of the state.” A lack of minorities in the teaching corps sends a “negative message that opportunities are unavailable to persons from their backgrounds.” The second reason was that “teachers may interact more successfully with students who have culturally similar backgrounds to their own.” Racially matching teachers with students, the report claimed, results in higher academic achievement by minorities. The third reason related to the ability of nonwhite teachers to improve the skills of white teachers: “Diversity within a school’s teaching force may increase knowledge and understanding of different cultural groups for all the teachers, thereby enhancing the ability of all teachers to interact successfully in diverse classrooms.”¹⁸⁷

The federal government also added its voice to the call for racial realism in teaching in the 1990s. A U.S. Department of Education report stated in 1990 that “Minority teachers serve as important role models for minority youngsters and provide evidence that America’s heritage and opportunities are intended to benefit all citizens.” It quoted Mary Hatwood Futrell, a past president of the NEA, who warned, “We’re cheating minority students of the positive role models they need, role models who can bolster their pride and self-esteem.”¹⁸⁸ Seven years later, the Department noted, “Many educators believe it is important for both minority and non-minority children to be taught by minority teachers, arguing that minority teachers are better equipped to motivate and work with minority students and that both minority and nonminority children benefit from having successful minority professionals as role models.”¹⁸⁹ In 1998, Secretary of Education Richard W. Riley justified a call for more diverse teachers by appealing to both racial abilities and racial signaling, explaining, “We need teachers who can relate to the lives of diverse students, and who can connect those students to larger worlds and greater possibilities…. Children need role models—they need to see themselves in the faces of their teachers.” “By their shining example,” he added, “teachers of color help fight the tyranny of low expectations—the pernicious voices that whisper into young ears, ‘You can’t do it. Don’t even try.’ ”¹⁹⁰

Professional schools have also called for racial diversity in their faculties as part of a racial-realist strategy. The American College of Physicians justified this position by stating, “Evidence shows that racial and ethnic minority faculty can have a profound impact on minority students, acting as mentors and providing new scholastic challenges and insights.”¹⁹¹ The KPMG Foundation started its “Ph.D. Project” by partnering with major universities to increase the racial diversity of business school faculties based on the racial-realist premise that having more nonwhite professors would increase racial diversity in corporate America. According to the Project’s mission, “As faculty, [African-Americans, Latinos, and Native Americans] serve as role models, attracting and mentoring minority students while improving the preparation of all students for our diverse workplace and society.”¹⁹²

While most universities have focused their diversity efforts on their student bodies, some have also made the obvious link to faculties, using racial-realist strategies along with arguments based on affirmative-action liberalism. The University of California’s diversity statement, for example, advocated a diversity of both students and employees to send the signal of openness to all people, and thus “sustain the social fabric of the State.” The statement also touted racial abilities: “Ideas, and practices based on those ideas, can be made richer by the process of being born and nurtured in a diverse community.”¹⁹³ Similarly, a group of elite liberal arts colleges submitted an amicus brief to the Supreme Court in Fisher v. Texas linking diversity of students to diversity of faculty, and pointing to the racial abilities of diverse faculty members. Different races, the brief argued, would ensure that classrooms were places of “dialogue, not monologue,” and would aid education “because teaching and learning at their best are conversations with persons other than ourselves about ideas other than our own.”¹⁹⁴

Finally, given the rise of charter schools and other forms of educational institutions, it is worth noting that both establishment and alternative educational organizations appear to advocate the racial-realist strategy for managing race in the classroom. A coalition of education groups (including the National Education Association and the American Council on Education) calling itself the National Collaborative on Diversity in the Teaching Force, issued a report in 2004 stating boldly, “Policymakers, teacher educators, members of ethnic communities, and school leaders agree that the education profession needs more teachers of color.” The reasons for this advocacy, the group stated, was the ability of nonwhite teachers to provide role models for nonwhite students, their ability to teach all students about ethnic, racial, and cultural diversity, and their abilities as “cultural brokers” who would aid students in the school environment and encourage parents’ involvement. Ultimately, these benefits would lead to heightened achievement, because “students of color tend to have higher academic, personal, and social performance when taught by teachers from their own ethnic groups.”¹⁹⁵

Teach for America (TFA), the influential nonprofit organization that places top college graduates in the nation’s most disadvantaged school districts, lauded by both Presidents George W. Bush¹⁹⁶ and Barack Obama,¹⁹⁷ also places a strong value on diversity in the teacher corps. The TFA website explains that the “power of diversity” is that “each corps member’s unique background and life experiences add tremendous value to our work.” The benefits of racial diversity in a teaching staff include idea generation to help improve education strategy, but the ultimate advantage lies in the racial signaling that teachers with racial abilities can provide their students: “While we value all forms of diversity, we place particular emphasis on recruiting individuals who share the racial or socioeconomic backgrounds of the students we teach, 90 percent of whom are African-American or Latino. Corps members who share their students’ backgrounds serve as powerful role models and have potential for a profound additional impact based on their personal experiences.”¹⁹⁸ The view from the inside of TFA is basically the same. The TFA recruitment manual has stated, “While everyone in the organization must operate with knowledge and understanding of the communities in which we work, we move further faster when decision-making groups and discussion groups are inclusive of people who have a shared experience and/or identity with the diverse individuals we serve.”¹⁹⁹

Are Teachers Being Hired Following the Racial-Realist Strategy?

While advocacy for racial realism is common, is hiring actually occurring along racial-realist lines? Given the low numbers of minority teachers, it is impossible for the majority of students of any group (other than whites) to have a teacher of their own race. For example, in California in the 2009–10 school year, 5.2 percent of the kindergarten through grade 12 public school teachers were Asian, 17.4 percent were Latino, and 4.2 percent were African-American, while 69.2 percent were white (the remainder were American Indian, Native Hawaiian or Pacific Islander, Filipino, had multiple races, or did not report a race).²⁰⁰ The kindergarten through grade 12 public school students, on the other hand, were 8.5 percent Asian, 50.4 percent Latino, 6.9 percent African-American, and 27.0 percent white.²⁰¹ National figures show a similar mismatch. In 2007–08, though 34 percent of the U.S. population and 41 percent of elementary and secondary students were minorities, only 16.5 percent of elementary and secondary school teachers were minorities.²⁰²

However, though there are not nearly enough of them, there is evidence that nonwhite teachers do tend to teach nonwhite students. Specifically, in 2003–04, 63 percent of minority teachers taught in schools that researchers classified as “high minority,” while 53 percent taught in “high poverty areas,” and 50 percent taught in urban school districts.²⁰³ Despite this concentration, even high minority schools employed mostly white teachers—only 42 percent were nonwhite. This was, of course, a far cry from the situation in low-minority schools, where nonwhites made up only 2 percent of the faculty.²⁰⁴ Gary Orfield’s Civil Rights Project found similar numbers: though the average white teacher teaches in a school that is only 12 percent Latino, 10 percent black, and 4 percent Asian, the average Latino teacher’s school is 37 percent Latino, 13 percent black, and 9 percent Asian. Black teachers teach in schools that are 10 percent Latino, 54 percent black, and 2 percent Asian. Asian teachers also show a racial matching pattern; the average Asian teacher is in a school that is 32 percent Latino, 14 percent black, and 22 percent Asian.²⁰⁵

These patterns, of course, may not be evidence of racial-realist hiring and placement strategies. It is unknown to what extent racial matching results from the preferences of teachers, or is driven by discrimination against nonwhites in mostly white school districts.

Does the Evidence Support Racial Realism in Teaching?

There is a massive amount of social science research on the effects of teacher race on the educational process, and, as in other areas of employment, the results are mixed, but with considerable evidence suggesting racial abilities and signaling should not be ignored. Much of the research has been on whether bias on the part of white teachers harms student performance. Scholars have also debated whether or not stereotypes of minority students, even if they exist, could be sustained in the context of repeated interactions with the same student or students (a pattern of interaction that contrasts with those of police, who typically do not interact with the same person or persons every day).²⁰⁶

Much evidence indicates that white teachers are indeed biased—though nonwhite teachers are not necessarily much more fair-minded. Researchers since at least the 1970s have found evidence of whites lacking racial abilities for equal teaching and counseling. One early study that examined the impact of ethnicity as well as racial groupings used films and videotape to document the gatekeeping function of counselors, and found that when counselors and students were racially matched, their interactions had a better emotional tone and students were offered more special help.²⁰⁷ Early research into schools in the Southwest backed up complaints from Mexican American parents that white teachers tended to think of Mexican-ancestry students as unintelligent and not destined for leadership positions, and that they often simply ignored these students.²⁰⁸ For example, a 1970–71 U.S. Commission on Civil Rights study of 430 schools in California, Texas, and New Mexico found that teachers praised or encouraged whites 36 percent more often than Mexican students, and used or built upon the comments of whites 40 percent more often. When all types of approving and accepting comments were combined, the results showed that 40 percent more positive attention was given to white students. The report blamed teachers’ neglect of Mexican culture for the reluctance of these children to contribute.²⁰⁹

More recent reviews of the literature have varied in their assessments of the state of white teacher bias against nonwhite students. Supporting the notion of white bias, one review of the literature found that white teachers tend to ignore black children more than white children, praise them less even when they give the same answers as white children, but reprimand them more.²¹⁰ For example, an experimental study had sixty-eight white female elementary school teachers listen to recordings of fifth-grade boys talking about their favorite TV show. The recordings were paired with photos of black or white kids, and researchers asked the teachers to rate the responses for personality, quality, and current and future academic ability. Race proved a significant factor for all of these assessments.²¹¹ But another a review of sixteen studies of teacher expectations for black vs. white students yielded only nine studies that showed white teachers having lower expectations for black students, and in only five of those were the results statistically significant.²¹² A study of more than seven thousand teachers in a school district in the American Southwest found that a teacher’s race had no impact on course grades, though students had lower absentee rates when their teachers shared their race.²¹³

What about the racial abilities of nonwhite teachers—do they show less bias than whites? Results are again mixed. The early U.S. Commission on Civil Rights study cited above found no evidence that Latino teachers differed from white teachers in their treatment of white students; in fact they actually tended to praise white students more than did white teachers.²¹⁴ On the other hand, a study of “paraeducators” (assistants who typically come from the community and help the licensed teachers) showed them to have racial abilities. When paired with Latino students, Latino paraeducators could talk to students about many topics, including things outside the classroom, and demonstrated cariño (a kind of affection expressed in words that non-Latinos would probably not use, such as mi amor and mijo/mija, as well as in touch, proximity, and facial expressions). Their cultural style minimized the negative effect of correcting behavior and created a more relaxed instructional style: “being Latino and speaking the same language helped them foster a sense of confianza.”²¹⁵ In addition, a nation-wide, longitudinal study of twenty-five thousand students found that while teacher race did not impact how much students learned, it did correlate with teachers’ subjective evaluations of their students. In some circumstances, black teachers gave significantly higher evaluations of black students than did white teachers, and the same was true of Latino teachers with Latino students.²¹⁶

Other scholars have argued that racial abilities matter in ways not directly related to the race of students. For example, research has found that teachers of different races vary in how they choose materials to use in the classroom, in the instructional activities they favor, in the kinds of examples they use to illustrate a new concept, and in how they manage a classroom.²¹⁷

Reviews of the literature on the actual effects of teacher race on students, rather than just on their biases or behavior, have sometimes found no or only weak support for racial realism, but other studies have found some robust effects. In the 1980s, for example, many scholars argued for the importance of racial signaling, maintaining that schools without minority teachers were sending the message that only whites belong in positions of authority—a message that would lower career goals for nonwhite students.²¹⁸ However, many empirical studies of this kind of racial signaling—the “role model” theory—in fact found little effect. A 1992 study of gender and race role models, using a sample of nearly 2,500 students who had taken an economics course, found that a teacher’s gender did not matter at all in the amount of economics learned and that the benefit for black students of having black teachers as role models, though statistically significant, was very small.²¹⁹ A study of almost eight thousand college students from thirty-four colleges and universities found that although students, and especially African-American students, tend to seek same-race role models,²²⁰ whether or not they have such a model has no effect on their choice of a career in academia, except in the case of African-American males, who were 3 percent more likely to choose an academic career if they had a same-race role model.²²¹

Perhaps because it seems so commonsensical, social scientists have nevertheless continued to emphasize the positive evidence, and to assert that same-race teacher role models are crucial for successful learning.²²² Moreover, there are studies that show student performance varying with teacher race. One review of the literature found studies showing that minority students taught by a teacher of the same race had fewer behavior problems, lower dropout rates, and better attendance than students whose teachers were of a race other than their own.²²³ A study of twelve thousand black and white students in Tennessee found that each year of exposure to a same-race teacher was associated with an increase of between 2 and 4 percentile points in reading and math.²²⁴ A study of school districts in Texas in the 1998–99 school year found that having Latino teachers positively impacted Latino students’ test scores, attendance, dropout rates, and the rates at which they took advanced and AP classes.²²⁵ The same effect has been found at the college level. For example, a 2011 study found that the gap between white students’ and black and Latino students’ drop-out rates and AP exam pass rates falls by half when the latter are taught by a same-race professor.²²⁶

In sum, there is evidence that white teachers are biased against at least some nonwhite students, and there is evidence that teacher behavior to some degree varies with race and also that, to varying degrees, teacher effects on student outcomes varies by race. While certainly not overwhelming, in the education context there is, as with policing, enough social science evidence to make it difficult to deny there is at least some value in racial-realist management.

Law and Racial Realism in Government Employment: Contradictory Messages

Since 1972, Title VII has covered government employers, but this does not mean that government employment is legally identical to private employment. First of all, there are a large number of positions that are “jobs” in the sense of being paid positions, and even having benefits attached, that are not “employment” within the rules of Title VII. Section 2000e of the law states: “The term ‘employee’ means an individual employed by an employer, except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”²²⁷ So voters are not employers in the meaning of the law (which is not very shocking), and neither elected officials nor their staffs can be sued for discrimination. They are not employers or employees as those words are defined by the statute.

Therefore, government officials can legally appoint persons to jobs explicitly because of their perceived racial signaling or abilities with complete impunity—and voters can be entirely motivated by whatever racial chauvinism, goodwill, or animus they may have in their hearts when they cast their votes. American law gives free rein to racial realism in filling what are arguably the country’s most important and most visible jobs—and there can be no doubt that elected officials and voters both take advantage of this freedom.

Placement in “civil service” and professional jobs, those not filled by appointment, is to be done according to legal rules, however. Yet this form of government employment also differs from private employment, though in another way. Depending on the claim of the litigants and the judge’s discretion, it is regulated not only by Title VII, but also by the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Crucially, unbound by any rules about race and BFOQs in hiring and placement, the Constitution can allow racial realism in government employment in ways that may for now be blocked under Title VII in other employment categories.

In current constitutional jurisprudence, racial classifications are acceptable in law as long as they are narrowly tailored and designed to achieve a compelling purpose. So the question before courts in government employment cases may be: are there any purposes in government hiring that are compelling or substantial enough to justify racial realism?

Some courts in the past few decades have asserted that there are. The courts are willing, however to see a compelling interest in race-based hiring in one area only; namely, law enforcement. In one case, a court approved of the racial-realist placement of nonwhite officers, not withstanding the fact that those officers litigated to stop the placement. Even here, there is evidence of judges struggling with racial realism, with some early opinions seeing it as discrimination, or catering to discriminatory tastes of citizens. One judge went so far as to compare the limitations of African-American officers to African-American neighborhoods to slavery. Yet a clear pattern has now taken shape of a judge-made opening for racial-realist management of law enforcement. Throughout, I note which president appointed the writers of these opinions to highlight the nonpartisan nature of the court rulings.

On the other hand, the long history of advocacy and the research record purporting to show that a teacher’s race is critical to the education process—which if anything is actually a bit stronger than for law enforcement—has simply not persuaded American judges. It is difficult to discern why judges would treat the employment of educators differently, though the history of violence spurred by incidents of white-onblack police brutality appear to be what makes racial realism “compelling” in law enforcement.

Authorizing Racial Realism in Policing

In no other area of public or private employment have the courts made more effort to authorize racial realism as they have in policing and law enforcement. Even in this field, however, it took several years for racial-realist legal doctrine to develop, and, especially in the early years after Title VII went into effect, some courts ruled that race had no place in policing. The more recent trend has been for courts to find a compelling interest in using race for the “operational needs” of the department, even though some nonwhite officers, like the African-American managers who sued the Walgreens drugstore chain (see Chapter 2), have litigated to prevent being placed in nonwhite neighborhoods.

One can trace the transition in court rulings by beginning with a 1968 case that considered the constitutionality of the St. Petersburg, Florida police department’s practice of assigning black officers to police black neighborhoods. The city actually drew up a zone to encompass both the black residential and black business areas and then assigned black officers to patrol that zone and a black sergeant to oversee those officers. The police chief’s testimony lauding the racial abilities of black officers was a factor in persuading a district court to accept the practice. The Fifth Circuit Court also noted Chief Harold C. Smith’s view that black officers “are better able to cope with the inhabitants of that zone, who on occasion become abusive and aggressive toward police officers during a disturbance; and, further, that they are able to communicate with the inhabitants of the Negro area better than white officers and are better able to identify Negroes and investigate criminal activities in that zone more effectively than white officers.”²²⁸ But in an opinion by the Judge John Minor Wisdom (an Eisenhower appointee with a strong liberal record on civil rights), the court overruled the district court, holding that the practice violated the equal protection guarantees of the Fourteenth Amendment. Going further, the court argued that racial matching (at least in this case) was analogous to slavery and thus would violate the Thirteenth Amendment if considered as a slavery case: “What the St. Petersburg Police Department did was to superimpose on natural geographic zones an artificial zone that rests on the department’s judgment of Negroes as a class. The Department concluded that Negroes as a class are suitable only for the zone appropriately numbered 13. This is the kind of badge of slavery the thirteenth amendment condemns.”²²⁹ Though noting in a footnote that racial assignments may be justified for undercover infiltrations of black crime organizations, or during periods of racial tension or unrest, the court held that the racial abilities argument that “Negro officers are better able to police Negro citizens cannot justify the blanket assignment of all Negroes, and only Negroes to patrol Zone 13.”²³⁰ Citing the Kerner Commission report for support, the court instead suggested that “Negro officers should be rotated among the various patrol zones of the city, in the same manner as white officers insofar as ability, available work force, and other variables permit.”²³¹

A district court also rejected racial realism for policing in a 1994 Title VII case involving a single white officer on the police force of a predominately black university, though here the issue was not officer abilities but the public’s discriminatory preference for black police officers. This white officer believed that the department subjected him to more disciplinary actions than the black officers and that this constituted racial discrimination against him. The court ruled in favor of the white officer, citing the black police chief’s racial-realist view that the white officer’s race was as “a negative factor” when he “had to confront certain black persons, mostly students, in the discharge of his official duties” because “a white officer would be perceived negatively by a portion of his constituent community which, in turn, could lead to racial responses and confrontations.” The opinion, written by Nixon appointee Garnett Thomas Eisele, noted that considering customer preferences this way would be tantamount to ruling that race could be a BFOQ—a ruling that Title VII clearly forbade.²³²

However, other courts have been more sympathetic to racial-realist arguments in hiring police officers or other law enforcement officials.²³³ In 1973, a Second Circuit Court ruled on a case brought by black and Puerto Rican applicants for the Bridgeport, Connecticut police force, who had found their opportunities blocked by an examination procedure they believed to be discriminatory. The court sided with the litigants, and using the Fourteenth Amendment for authority, approved hiring quotas for minority police officers to compensate for past discrimination. But this opinion, written by Nixon appointee William Hughes Mulligan, moved beyond traditional affirmative-action principles to justify its decision: “The most crucial consideration in our view is that this is not a private employer and not simply an exercise in providing minorities with equal opportunity employment. This is a police department and the visibility of the Black patrolman in the community is a decided advantage for all segments of the public at a time when racial divisiveness is plaguing law enforcement.”²³⁴

A year later, in a case involving the Alabama Department of Public Safety, a Fifth Circuit Court cited as precedents the Bridgeport case and also school desegregation cases that relied on the Fourteenth Amendment, and also ordered racial hiring quotas to make up for past discrimination. Nixon appointee Charles Clark’s opinion approvingly quoted the above passage on the strategy of deploying the racial signaling of black officers.²³⁵

More explicit and forceful support for racial signaling came in a Detroit case that was notable for a circuit court’s overruling of a very strongly worded district court opinion. Following the disastrous 1967 riots, the city government decided that black officers were better for black neighborhoods and instituted an affirmative-action plan that was motivated not just by a desire to compensate for past discrimination, but also by the belief that African-American officers could do a better job of policing the city. In the 1970s, several white officers sued the city, claiming they had been passed over for promotions. In a Michigan district court, the city defended itself with a variety of arguments, including the claim that black officers are better at communicating and gaining cooperation than white officers when dealing with black citizens. Detroit also argued that the crime rate and citizen complaints both went down after its affirmative-action plan went into effect and that a racial-realist management strategy was therefore an “operational need” of the police department. The district court’s Eisenhower appointee, Frederick Kaess, soundly rejected this defense on the grounds that effectiveness is dependent upon skill, training, and attitude, and that race preferences hurt department morale and thus police work as well.²³⁶ Moreover, approving this legal logic would lead to the perverse result of justifying racial preferences for whites as well: “If better public communication would exist by hiring more blacks and promoting more blacks to supervisory positions then the problem lies in a racially motivated populace. In the eyes of this Court catering to such racial prejudice cannot be said to be ‘compelling’. On the contrary, the Court would consider it to be pandering. If the defendants’ claim of ‘operational need’ can be considered as compelling then apparently any all white community, via the police department, could lay claim to such a ‘compelling interest’ in forming a basis to reject all non-whites.”²³⁷

On appeal, the Sixth Circuit reversed, arguing that perceptions of the value of racial qualifications were not based on “provincial beliefs” but on law enforcement experience. The circuit court opinion, written by Nixon appointee Pierce Lively, cited four different federal studies²³⁸ and noted that they all “recommended the recruitment of additional numbers of minority police officers as a means of improving community support and law enforcement effectiveness.”²³⁹ Having African-American officers would give the community confidence in the police and make them feel that they were not being policed entirely by whites, and this would in turn lessen the risk of violence. Supporting the national studies were the local voices of Chief William H. Hart, Executive Deputy Chief James Bannon, and former Police Commissioner John F. Nichols. Given this evidence, the appeals court argued there was a substantial interest that justified the race categorizations because of signaling:

The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions … the justification offered by defendants is a substantial one.²⁴⁰

A Fourth Circuit Court issued a similar correction to a wayward district court that had mistakenly denied the constitutionality of racial realism in policing. The circuit court’s opinion in Talbert v. City of Richmond²⁴¹ is distinctive because it is one of the few cases to apply to employment the “diversity” rationale for race preferences in university admissions that the Supreme Court had articulated in the famous Bakke decision. Richmond, Virginia, sought to use race as a factor in promoting minorities to the top ranks of the police department in order to (in the words of the court’s John D. Butzner, a Johnson appointee) “advance the operational needs of the police department by achieving diversity…. It viewed such diversity as important to effective law enforcement in a city whose population was approximately 50% black.”²⁴² The court agreed that “the city’s claim that diversity is beneficial to operation of the department is akin to the claim accepted by Justice Powell in Bakke that a school has a legitimate interest in obtaining a diverse student population.”²⁴³

More recent cases strengthened the argument for a racial-realist strategy in policing or, more broadly, law enforcement. A 1996 case involved employment practices in a Greene County, Illinois boot camp, where young criminals would be given regimens of extreme military-style discipline in the hopes of encouraging them to become constructive citizens. At the camp, 68 percent of the two hundred inmates were black, but only two of the forty-eight correctional officers were. There were also three white captains and of the ten lieutenants, only two were black. Three white applicants for the lieutenant position sued, claiming they were discriminated against on the basis of their race when one of the black lieutenants was hired. The Seventh Circuit opinion, written by Reagan appointee Richard Posner, sided with the boot camp. Posner noted that the Supreme Court had held against “role model” theories of discrimination (see below) because there is little evidence supporting racial role models and the theory has nearly boundless reach. But the boot camp’s desire for a black lieutenant was different, he claimed—and justified:

The black lieutenant is needed because inmates are believed unlikely to play the correctional game of brutal drill sergeant and brutalized recruit unless there are some blacks in authority in the camp. This is not just speculation, but is backed up by expert evidence that the plaintiffs did not rebut. The defendants’ experts—recognized experts in the field of prison administration—did not rely on generalities about racial balance or diversity; did not, for that matter, defend a goal of racial balance. They opined that the boot camp in Greene County would not succeed in its mission of pacification and reformation with as white a staff as it would have had if a black male had not been appointed to one of the lieutenant slots.²⁴⁴

Here the court was very cautious. The ruling emphasized that the boot camp was not authorized to engage in race-based hiring in response to “extortionate demands” from same-race prisoners and was not authorized to make the racial mix of its staff mirror that of its inmates. Moreover, the racial realism was based here not on principle but on empirical evidence, and if other evidence was forthcoming that would successfully countered the claims of the boot camp experts in Greene County, then the practice might have to stop.²⁴⁵

Six years later, in 2002, the Seventh Circuit and Judge Posner had a chance to revisit this thinking, this time in a case involving Latinos and Chicago’s police department. White male police sergeants and lieutenants challenged the promotions of black, Latino, and female officers. Past discrimination against these groups justified Chicago’s affirmative-action plan, but, they argued, the city could not use affirmative action to justify promoting Latino officers because there had been no evidence of discrimination against Latinos. There were only a few Latino lieutenants in the city despite a population that included half a million Latinos, but this discrepancy was due mostly to the rapid growth in this population.²⁴⁶ Chicago therefore defended the Latino preference by arguing that Latinos could sensitize the department to the specific problems of the Latino community and serve as trusted “ambassadors.”²⁴⁷ Posner agreed, noting that “many courts … have at least left open a small window for forms of discrimination that are supported by compelling public safety concerns.” “Especially in a period of heightened public concern with the dangers posed by international terrorism,” he argued, “effective police work must be reckoned a national priority that justifies some sacrifice of competing interests.” If “promoting one Hispanic police sergeant out of order is important to the effectiveness of the Chicago police in protecting the people of the city from crime,” then this was acceptable, even if it was racial discrimination.²⁴⁸

Finally, in another Chicago case, a Seventh Circuit Court ruled that the operational needs of the city’s police department formed a compelling interest in a racially diverse department.²⁴⁹ The case was especially significant for using the Grutter v. Bollinger opinion to justify a practice in policing (see below).

Even in a legal environment where courts are authorizing police departments to use racial realism in their hiring and placement of officers, the practice is subject to some limits. Two cases show nonwhite officers challenging racial realism (with some degree of success) for the negative impacts it can have on their work experiences.

First, a district court in 1982 ruled on a charge made by an organization of police officers in Bridgeport, Connecticut. As described above, Bridgeport had been the site of an early case where a court noted approvingly the racial signaling impact of nonwhite officers to justify racial preferences in hiring. Ten years later, those black and Latino officers were challenging in court their disproportionate concentration in high-crime areas, where violent, physical assaults were most common and police work was at its most challenging and stressful. The city did not squarely attempt to defend this policy as one of operational needs, however. Superintendent of Police Joseph Walsh said obliquely that officers’ assignments are based on “the relative importance that they may have in different types of neighborhoods.”²⁵⁰ The judge in the case, Carter appointee T. F. Gilroy Daly, took his statement to be an admission that officers are matched to neighborhoods that correspond to their race, and rejected it as a justification for policy, arguing that it was based on the stereotype that black officers work better with black citizens. This was an impermissible “racially-based motive.”²⁵¹

The most prominent challenge to racial realism in policing followed a particularly shocking case of police brutality involving torture. New York City officers beat and sodomized a black Haitian immigrant, Abner Louima, with a toilet plunger, sending Louima into the hospital for months of surgeries to repair serious injuries. Two days after the torture of Louima, Mayor Rudolph Giuliani met with police officials, community leaders, religious leaders, and Una S. T. Clarke, the councilwoman who represented Brooklyn’s 40th District, where the violence had occurred. After the meeting, Police Commissioner Howard Safir decided to assign twenty-seven black police officers to the precinct. Safir later explained, “We discussed the issue that this was an emergency situation, that we believed and I believed that there was great potential for civil disturbance and we needed to very quickly and very expeditiously calm the community and make sure that the community understood that we took this incident very seriously, that we were not going to cover it up, that we were not going to let it go unnoticed and we were going to take very firm and decisive action.”²⁵²

Twenty-two of the twenty-seven officers, who self-identified variously as African-American, Black-Hispanic, Jamaican, West Indian, Trinidadian, or Guyanese, sued the city, charging racial discrimination in their deployment to this problem precinct. They argued that their status was lowered, that they lost promotion opportunities, and that their new precinct was “hostile and difficult,” leading some of the officers to fear “for the safety of themselves and their families.”²⁵³ The city responded that “the minority community’s distrust of the NYPD was heightened by the Abner Louima incident and could have resulted in a collapse of the social order,”²⁵⁴ and that the Bakke decision had established that the city did not have to demonstrate past discrimination against blacks to use race for hiring and placement.²⁵⁵ Judge Shira A. Scheindlin, a Clinton appointee, agreed with the city: “In order to carry out its mission effectively, a police force must appear to be unbiased, must be respected by the community it serves, and must be able to communicate with the public. Thus, a police department’s ‘operational needs’ can be a compelling state interest which might justify race-based decision making.”²⁵⁶ The court took a balanced approach however: the city’s placements had to be temporary and officers would be able to request transfer.²⁵⁷

The Supreme Court has not ruled on racial realism in policing.²⁵⁸ The trend in the circuit courts, however, appears strongly supportive of the practice in this specific employment sector. Numerous precedents allow law enforcement agencies of various types to consider the strategy of nonwhite racial signaling and racial abilities. This is, however, the only avenue where multiple courts have given legal authorization for the strategic deployment of racial realism in employment.

Blocking Racial Realism in Teaching

The story of racial realism in teaching is in some ways the opposite of that in policing. Rather than failing at first and then becoming more established later, in education it began more positively in the lower courts, but the Supreme Court emphatically ruled out at least the racial signaling strategy in the 1980s. Subsequent lower court decisions reinforced the legal prohibition on other racial-realist management strategies in education. Whether that will change again remains to be seen.

The Brown v. Board of Education Supreme Court decision, as well as some earlier rulings, had shown concern that segregated blacks could never learn when they were educationally isolated, while evincing no concern about the potential abuse of minority children in majority schools.²⁵⁹ By the 1960s, courts were beginning to order school districts to integrate their faculties as well as their students. In these cases, courts did not say that teacher or administrator race had any particular correlation with ability or signaling. Rather, a racially balanced faculty was important mainly as an indicator that schools were no longer segregated.²⁶⁰

In the riot-torn late 1960s, however, at least one federal court began to see great value in racial realism. Porcelli v. Titus²⁶¹ involved the school system in the city of Newark, New Jersey, which had been the site of some of 1967’s worst rioting.²⁶² Superintendent of Schools Franklyn Titus had urged the school board to suspend the normal, examination-based procedure of promoting teachers to administrative jobs. The school board accepted the move, allowing more blacks to move into these administrative positions. Titus explained that in the more than two decades since the old promotion procedure was developed, “the conditions in the City had changed, educational philosophy had changed. There was a high[er] premium on sensitivity than had existed hitherto.”²⁶³ Titus continued: “Sensitivity, as I see it, is that element of a person’s personality which makes him aware of the problems of the ghetto, unique to the circumstances surrounding being a member of a minority group, sensitive to the educational needs that go out of the deprived conditions in many of our—most of our neighborhoods…. As I see it, and I see it very clearly in my own mind, anybody who is in a position of leadership today in a city like Newark has to be able to identify, has to be able to understand.”²⁶⁴ Other witnesses supported Titus’s argument that suspension of the promotion lists was the right move because the lists “didn’t represent the kinds of racial mix that I feel is most important in accomplishing an educational program in the City of Newark.”²⁶⁵

Various educational experts also testified in the case, arguing that poor reading levels showed that an “educational crisis” existed in Newark, and that hiring nonwhites was the way to turn things around. An urban education professor at Brooklyn College, Dr. Robert Trent, testified, “If you want significant change in the school performance of the ghetto population, it is highly advisable to involve as much as you can competent black professionals.” Trent argued that blacks could inspire students as role models, blacks would be better at disciplining black children, and blacks would be better at bringing black parents into the educational process—though in some circumstances a white person could also do the job.²⁶⁶

In supporting Titus, Judge Anthony Augelli, a Kennedy appointee, emphasized that the record showed there was no intention to discriminate against whites or to exclude them from consideration. Blackness in Newark’s educational system was simply a qualification: “Despite a desire to provide an avenue for the appointment of more Negro administrators, the ultimate objective of the Board was to promote those persons most qualified to suit the needs of the Newark school system.”²⁶⁷

Other lower courts also affirmed racial realism. The decision in a case involving the Kalamazoo, Michigan school district amounted to an endorsement of the racial signaling role model theory in education. The district had been under a 1973 court order to desegregate, and faced a challenge several years later when a fiscal crisis forced the district to lay off more than one hundred teachers. The district sought legal authorization to avoid having to lay off the most recently hired teachers, who were predominately black. The court sided with the district, citing approvingly the testimony of Dr. Robert Green, a court-appointed expert who had written a study of the Kalamazoo school district. Green argued that desegregation required a “critical mass” of black teachers and administrators so that the students could have role models. Judge Noel Fox, appointed by Kennedy, agreed with Green that “the need for role models is important because they can encourage minority students to higher aspirations and at the same time work to dispel myths and stereotypes about their race.”²⁶⁸ Laying off black teachers, as the court paraphrased Green, would “take away badly needed student role models and would have a psychological impact on the students and the general community who could perceive the District’s actions as being inequitable and a disavowal of its promises to desegregate.”²⁶⁹ Fox’s opinion noted that in assessing a Title VII case, the court only had to consider possible injuries to employees, but in a constitutional case focused on equal protection, possible injuries to students also must be considered—and these students needed to have same-race role models.²⁷⁰

But after two more lower courts affirmed the idea, the Supreme Court explicitly rejected the idea of the hiring teachers to provide racial role models. In Wygant et al. v. Jackson Board of Education (1986), the Court considered a situation, also in Michigan, that was similar to that in Kalamazoo. The Jackson, Michigan school board had a plan that protected some teachers from being laid off, with some consideration for race or national origin. The district had lagged in the hiring of black teachers for decades, hiring its first black teacher in 1953. By 1969, African-Americans were only 3.9 percent of the teaching staff, while the student body was 15.2 percent African-American. In 1972, the schools in the district saw considerable racial tension, and violence broke out in Jackson High School.²⁷¹ The school district responded by changing its collective bargaining agreement with the union so as to offer protection for minorities from being laid off in tough times.²⁷² It was this rule that became the center of litigation.

In the federal district court, the Jackson school district defended its hiring plan with arguments emphasizing the need to remedy societal discrimination and the importance of racial signaling. This line of reasoning persuaded this lower court, which issued a ruling that the legality of the plan required comparing the percentage of black teachers with the percentage of black students (rather than the percentage of black teachers in the local labor market).²⁷³ This was because “teaching is more than just a job. Teachers are role-models for their students. More specifically, minority teachers are role-models for minority students. This is vitally important because societal discrimination has often deprived minority children of other role-models.”²⁷⁴ A Sixth Circuit Court agreed, stating, “The school board’s interests in eliminating historic discrimination, promoting racial harmony in the community and providing role models for minority students are among the justifications available to support the layoff provisions.”²⁷⁵

But the Supreme Court was not convinced. Writing for the majority, Justice Powell—author of the “diversity” constitutional rationale for race-conscious admissions in universities—rejected the notion of “societal discrimination” as a justification for considering race when laying off teachers, on grounds that it was “too amorphous.”²⁷⁶ But he also ruled that hiring for racial role models was unacceptable. Powell maintained that “the role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose.” Powell expressed concern that relying on racial signaling could in fact limit opportunities for minority teachers in schools with few minority students. Most devastatingly, he compared it to Jim Crow discrimination: “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.”²⁷⁷

Justice O’Connor concurred with Powell’s view but added that she believed school districts were not barred from considering race for its other organizational or educational benefits, opening the door to some racial-realist hiring or placement. She argued, “Although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently ‘compelling’, at least in the context of higher education, to support the use of racial considerations in furthering that interest…. And certainly nothing the Court has said today necessarily forecloses the possibility that the Court will find other governmental interests which have been relied upon in the lower courts but which have not been passed on here to be sufficiently ‘important’ or ‘compelling’ to sustain the use of affirmative-action policies.”²⁷⁸ The goal of providing role models “should not be confused with the very different goal of promoting racial diversity among the faculty.”²⁷⁹ By emphasizing the possible constitutionality of hiring teachers for their contributions to diversity, O’Connor appeared to be trying to give authorization for racial abilities, even if the Court found the racial signaling implied by the role model theory to be unconstitutional.

At least one circuit court did not take the bait. Another blow to racial realism in teaching came in a highly controversial appeals court decision arising out of a case in Piscataway Township in New Jersey, discussed briefly in Chapter 2. This decision specifically rejected O’Connor’s suggestion that a goal of teacher diversity would justify considering race when managing a district’s teachers. The specific situation once again involved the consideration of race when laying off teachers. The education board had laid off a white teacher, Sharon Taxman, while retaining a similarly qualified black teacher, Debra Williams, because its affirmative-action plan directed the board to consider the value that the black teacher’s racial diversity could add to the education process. Williams was the only black teacher in the Business Education Department. The board sought to use the diversity rationale as articulated by Powell in the Bakke decision, as well as O’Connor’s concurring opinion in Wygant, to justify its affirmative-action plan and the retention of Williams, though in their understanding diversity was useful for both the racial signaling and the racial abilities that nonwhite teachers could provide. Theodore Kruse, the school board’s president, told the court that because the community was so diverse, it would be “valuable for the students to see in the various employment roles a wide range of background,” and that “it was also valuable to the work force and in particular to the teaching staff that they have—they see that in each other.” In his view, keeping the black teacher “was sending a very clear message that we feel that our staff should be culturally diverse, our student population is culturally diverse and there is a distinct advantage to students, to all students, to be made—come into contact with people of different cultures, different background, so that they are more aware, more tolerant, more accepting, more understanding of people of all backgrounds.”²⁸⁰

The district court rejected the board’s argument, stating that affirmative action in employment must be justified by a rationale specifically focused on remedying past discrimination in the school district.²⁸¹ The Third Circuit’s en banc decision (written by Reagan appointee Carol Los Mansmann, but supported by future Supreme Court Justice Samuel Alito in the majority) also rejected the board’s reasoning. Mansmann argued that Congress intended Title VII to stop discrimination or remedy previous discrimination, and only the latter goal justified employers using race in making employment decisions: “there is no congressional recognition of diversity as a Title VII objective.”²⁸² The court specifically rejected the board’s attempt to use the Bakke decision’s approval of “diversity” as a constitutionally permissible goal, as well as a decision relating to the Federal Communications Commission’s connection of racial diversity and broadcasting,²⁸³ because these contexts were totally different from employment at a high school.²⁸⁴ It considered the case as a standard affirmative-action case, and failing to find the proper legal arguments to defend affirmative action (remedying a racially imbalanced workforce with a temporary measure that would not trammel the interests of whites), ruled against the school board.²⁸⁵

Racial realism for teachers no longer fares well under the Constitution either. The Texas Education Agency’s goal of having a staff that matched the racial and ethnic demographics of Texas students was challenged in federal court by Karen Hansen Messer, a white female administrator who believe that she was denied promotions and higher pay because the agency needed more nonwhites and males to “produce a workforce that reflects the ethnic and gender diversity of the state’s population.”²⁸⁶ While not strictly a racial-realism case (the hiring and promotion plan did not say what the diversity was intended to accomplish), it likely would have failed if there were racial ability or signaling components, because this court, in an opinion written by Reagan appointee Edith Jones, ruled the racial preferences were not constitutional “in the absence of remedial action to counteract past provable discrimination.”²⁸⁷

Court Rejection of Government Racial Realism outside of Policing and Teaching

Racial realism in other areas of government employment has also failed to receive judicial authorization. There have been few challenges, and the contexts have not involved such pressing and ongoing concerns as can be found in policing. As with Piscataway’s Taxman case, the courts have treated the challenges as basic Title VII cases, refusing to bring in the constitutional doctrine from the law enforcement cases or non-employment contexts. This means that the lack of a race BFOQ has led these courts to disallow racial realism, just as they have in private, skilled employment.

A 1981 New York case involved what is likely a common practice of employers in many contexts who are interested in a diverse workforce: the use of nonwhite recruiters to attract nonwhites. The case involved a challenge from an African-American man, James Knight, who worked for the Test Development Division of the Nassau County Civil Service Commission. Knight was hoping for a promotion, but the Commission assigned him instead to a minority recruiting position. Knight claimed that the failure to promote him and the recruiting assignment were prompted by considerations of his race. A Second Circuit Court ruled that there was no discrimination in his failure to be promoted, but that his transfer “was clearly based in significant part on his race. The Commission apparently thought that Knight would develop a better rapport than would a white person with the members of minority groups whom the Commission was trying to recruit. Although his salary and benefits remained unchanged, Knight claims that the assignment was racist and demeaning.”²⁸⁸ In an opinion written by James Oakes, who was appointed by Nixon but was a prominent liberal, the court ruled in a way similar to the anti-racial-realist position taken by the court in the Piscataway school case. In other words, given the lack of a BFOQ for race, race could be a factor in such government placements and not violate Title VII or the Constitution only in affirmative-action contexts, and this was not an instance of affirmative action—it was discrimination. Knight’s transfer was not acceptable because it “was based on a racial stereotype that blacks work better with blacks and on the premise that Knight’s race was directly related to his ability to do the job.”²⁸⁹

Another case involved an African-American worker, Carl Rucker, who worked for a state agency in Wisconsin, the Higher Educational Aids Board, that provided counseling services to disadvantaged kids, most of them black.²⁹⁰ Rucker was under pressure from his boss (also African-American) and local African-American preachers not to grant permanent-employment status to a white counselor; they believed that disadvantaged black youths should be counseled by members of their own race. The preacher even told Rucker, “You’re going to have to get a black woman and put her on that job. It’s as simple as that.”²⁹¹ Rucker resisted and was eventually fired.

The court, in an opinion written by Richard Posner, who had accepted racial realism in policing, rejected the board’s racial realism, first on grounds that courts have rejected customer discrimination as a justification for preferences in cases dealing with employer preferences for women in some jobs.²⁹² Second, the court noted that the board’s view was even less warranted than in a gender case because considering customer preference would in this case be the same as saying there was a race BFOQ. Therefore, no racial realism was allowed: “Title VII is a blanket prohibition of racial discrimination,” and even though it is “not irrational” to “refuse on racial grounds to hire someone because your customers or clientele do not like his race,” it is nevertheless “clearly forbidden by Title VII.”²⁹³

These cases suggest that it is not education that presents an exception in disallowing racial realism in government employment. Rather, law enforcement is the exception in that it is only in this arena that the courts have opened space for management strategy utilizing racial abilities and signaling.

The Failure of the Grutter Decision to Change the Game in Government Employment

The year 2003 brought one of the most significant Supreme Court decisions on race in years, and one with special application to government employment because it dealt with constitutional limits on racial classifications. Like the Bakke decision, it focused not on employment but on racial preferences in university admissions. A white female applicant, Barbara Grutter, was denied admission and sued the University of Michigan Law School, arguing that the school’s use of racial preferences in its admissions policy violated both the Constitution and the Civil Rights Act of 1964’s Title VI. Specifically, she argued that the school violated the Fourteenth Amendment’s guarantee of equal protection of the laws and Title VI’s prohibition against discrimination in programs receiving federal assistance.

By a 5 to 4 decision, the Court upheld the University of Michigan Law School’s admissions plan. In the majority opinion, Justice Sandra Day O’Connor largely supported several arguments made by the Law School. She noted that the Law School gave a preference to African-Americans, Latinos, and Native Americans in order to achieve a “critical mass” of these groups (that is, a large enough number that students in these groups would not feel isolated or that they had to be spokespersons for their race). The Court’s majority was persuaded that the goal of admitting a critical mass of minority students, and the resulting diverse student body, was a compelling interest that justified otherwise suspect racial classifications because it promotes “cross-racial understanding,” breaks down stereotypes, and produces livelier, more interesting and spirited classroom discussions.²⁹⁴ In other words, the nonwhite students had the ability to produce particular effects that would be missing without their presence—and this was especially true, apparently, of those students who did not fit stereotypes. Though there was no “characteristic minority viewpoint on any issue,” nevertheless growing up as a minority would lead to viewpoints different from those of the majority.²⁹⁵

Though the case dealt with school admissions policies, and O’Connor emphasized that her reasoning was shaped by the educational context,²⁹⁶ there were reasons to expect that the decision would have impacts in employment law. First, the opinion contained some connections to employment. Amicus briefs convinced the Court that a diverse student body leads to better learning and better preparation for an increasingly diverse workforce. The majority appeared impressed with the brief from the Fortune 500 companies, discussed in Chapter 2, and cited it for the point it made that being among diverse students developed skills “needed in today’s increasingly global marketplace.”²⁹⁷ In another important potential link to employment, and in particular to government employment, the majority admitted to being impressed by an amicus brief from retired military officers, who had argued that “a highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.”²⁹⁸ In order to ensure they had a diverse officer corps, the military needed educational institutions that could use race preferences at least to some degree. In the most direct acknowledgement of the value of racial signaling in government employment, the majority wrote of the value of racial signaling: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”²⁹⁹

Second, courts ruling on employment discrimination routinely cite as precedents cases that regard vastly different contexts, spreading their influence far and wide.³⁰⁰ As discussed above, at least one court cited Bakke, which is also about university admissions, to allow the utilization of racial realism in the employment of police officers.

Some legal scholars expected, therefore, that Grutter would migrate to employment.³⁰¹ Virtually all of the arguments for the notion that racial diversity of student bodies aided the educational mission of universities would, it was believed, also apply, at the least, to professors and teachers and to secondary and primary schools as well as to universities.³⁰²

No court, however, has relied on Grutter to allow racial realism as a strategy for hiring educators at any level.³⁰³ The reliance on the Constitution to justify the racial utility, as well as the emphasis on the civic benefits of racial diversity, made it even less likely that Grutter could migrate to private employment and Title VII jurisprudence.³⁰⁴

Grutter’s only influence in employment was on the path of least resistance: policing. The case, once again, involved the city of Chicago. This time the issue was an examination the city used in the mid-1980s to promote black and Latino officers to the rank of sergeant. After years of procedural battles, the Seventh Circuit issued a ruling that was based closely on the ruling in Grutter. Judge Terence Evans, a Carter appointee, cited a criminologist, Samuel Walker, whose research showed that minorities tended to distrust the Chicago police and tended not to cooperate with them, and that if officers were supervised by minorities this would mitigate the problem. Police officials also supported this argument, and added that minority cops helped defuse “potentially explosive situations.”³⁰⁵ Citing other policing precedents, Evans summed up by referring to Grutter: “All in all, we find that, as did the University of Michigan, the Chicago Police Department had a compelling interest in diversity. Specifically, the [Chicago Police Department] had a compelling interest in a diverse population at the rank of sergeant in order to set the proper tone in the department and to earn the trust of the community, which in turn increases police effectiveness in protecting the city.”³⁰⁶

The diversity argument and the Grutter precedent were less successful in a more challenging context—racial diversity in Newark’s fire department. Racial realism had already failed in a fire department context in Chicago.³⁰⁷ Even armed with the Grutter opinion, Newark would fare no better. In 2002, Newark’s mayor, Sharpe James, issued a “diversification order” requiring that all fire houses in the city be integrated. The stated purpose was “to improve morale” and also to respond to an old consent decree regarding racial discrimination by the fire department.³⁰⁸ Thirty-four firefighters who had been forced to transfer or not allowed to transfer due to the policy joined with the union to bring a Title VII and Fourteenth Amendment discrimination suit against the city and fire department. The city defended its action, saying it was trying to eliminate de facto segregation in the fire houses, that it needed to act because of the old consent decree, and that (citing Grutter) it had a compelling interest in racially diverse fire companies because of the “educational, sociological and job performance” benefits that diversification would bring about.³⁰⁹

The Third Circuit Court, in an opinion written by Maryanne Trump Barry (sister to the real estate developer Donald Trump, and originally appointed by Reagan but elevated to the circuit by Clinton), rejected Newark’s argument that seeking diversity was a compelling reason for considering race when staffing fire departments. It chose to read Grutter as a decision about law school education. Fire departments were different because they are not meant to educate. Their mission is to put out fires. There was in this case no compelling interest in the educational benefits of diversity, and the city had neither made a claim nor provided evidence that racial diversity helped to put out fires and was therefore one of the “operational needs” of the fire department.³¹⁰

What, then, do we know about racial realism in government employment? We know that leaders of both parties appoint advisers, aides, administrators, and judges based in part or entirely on strategic considerations of racial signaling. Moreover, they sometimes do this while declaring that racial discrimination is wrong and in fact always wrong. Voters are right there with them, as they often support candidates based on racial considerations, and studies show they commonly respond differently to political leaders of different racial backgrounds—and also that they have reason to do so, as white and nonwhite official do behave differently in some circumstances. Police departments and schools also consider racial signaling as well as racial abilities in making hires and appointments, though social science evidence does not consistently support the benefits of these efforts. Neither civil rights law nor the Constitution constrain the use of racial realism by elected officials (or by voters) but both have much to say about law enforcement and teaching. Courts have thus far granted legal authorization for racial realism only to law enforcement institutions. The varying authorizations in law appear to bear little relationship to everyday practice.