The Irrelevance of Soft Bigotry
Why Joe Biden's foul-up doesn't matter.
Joe Biden got his presidential campaign off on the wrong foot this week when he called one of his competitors for the Democratic nomination, Barack Obama, "the first mainstream African-American who is articulate and bright and clean and a nice-looking guy." This isn't his first such lapse: In another unguarded moment last summer, Biden said, "You cannot go to a 7-Eleven or a Dunkin Donuts [in Delaware] unless you have a slight Indian accent."
So, is Biden a bigot, and should we care in the context of his presidential candidacy (assuming it survives)? Federal laws offer a rationale for concluding that the answer is, not much.
Civil rights law doesn't prohibit racism by employers. It prohibits discrimination on the basis of race—tangible actions taken by employers, not their bad attitudes. The 1989 Supreme Court case Price Waterhouse v. Hopkins helped to determine how the law handles cases where both bias and acceptable motivations influence a decision about how to treat an employee. Ann Hopkins, a candidate for partnership at Price Waterhouse, alleged sex discrimination when she was passed over for a promotion. People in her firm had made sexist comments about her, and some had made sexist comments in connection with her bid for promotion. But that wasn't enough for Hopkins to win. The Supreme Court held that she needed to show that their sexism affected the company's decision to deny her the promotion. Justice Sandra Day O'Connor made the distinction between attitudes and actions most pointedly in her concurrence, worrying that imposing liability based on sexist attitudes alone would make civil rights law into a form of "thought control."
This may seem weak: Why should we let racists and sexists off the hook? Shouldn't the law try to change hearts and minds as well as practices? But it makes practical sense. Attitudes are notoriously hard to discern, much less control. Maybe Joe Biden is a bigot who thinks most blacks are dirty and inarticulate, but maybe he's just inarticulate himself. And Justice O'Connor was right to suggest there's something creepy and illiberal about the state policing and punishing thoughts—even thoughts most people think are reprehensible.
Attitudes matter, but they matter because they can affect decisions. Happily, most decisions in moderately sized institutions—and more so in large institutions like Price Waterhouse or the government of the United States—are made through relatively formal procedures, where reasons need to be articulated and evaluated. Even if bigots participate in the decision-making process, the rules and norms of the institution can help to ensure that their attitudes are not allowed to pollute the decisions. In the end, Ann Hopkins won her lawsuit against Price Waterhouse, in part because the firm as a whole did nothing to disclaim or repudiate the sexist comments of some partners. This made it more likely that the sexism did in fact affect the decision to deny Hopkins a promotion.
Yet there are plenty of new tools for the thought police. For instance, the Implicit Association Test, developed by psychologists Mahzarin Banaji and Anthony Greenwald, seeks to identify not just hidden biases, but even unconscious biases. It works by testing reaction time when the subject is asked to make associations between faces and words: If you're quick to associate white faces with words like "articulate" and "clean" but slow to associate African-American faces with those words, you may be an unconscious bigot, even if you're a liberal Democrat who thinks you're a paragon of tolerance. Critics have questioned whether the test really proves anything about the unconscious minds of individuals—reaction time might simply reflect the associations you are used to seeing in society, not the associations you yourself believe to be valid. But suppose it does smoke out unconscious bias. Should we make candidates for elected office take it and pay attention to the results?
It's widely known that by many reliable accounts, President Lyndon Baines Johnson was something of a racist, as was typical of white Southerners of his age. He might well have flunked Banaji and Greenwald's test. But of course Johnson worked tirelessly and at real political cost to ensure the passage of modern civil rights legislation. His professional and personal dealings seem free of the stain of bigotry. By contrast, as Jacob Weisberg has suggested in Slate, one need not think President Bush a bigot in his heart to think that his reaction to Hurricane Katrina bore the hallmarks of racial insensitivity. If Bush didn't care about black people in New Orleans, that was not because of his personal racial animus, but because of his institutional priorities. This was not a political constituency that mattered to him.
Like Price Waterhouse, a political party or executive branch that allows racial prejudice and indifference to affect decisions is a larger problem than the bias of an individual. Presidents don't make decisions in a vacuum—they make them as leaders of administrations and in reaction to political pressures. So, their decisions are more like institutional decisions. A president who resists the pressures to ignore the needs of relatively powerless minority groups, like the Katrina victims, is one who deserves our support—whatever his latent personal attitudes. My vote's with the next LBJ.
Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.