Constructing Race Policy in the United States and Great Britain: History and Politics in the Development of Employment Discrimination Policy



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Constructing Race Policy in the
United States and Great Britain:
History and Politics in the Development of
Employment Discrimination Policy

Robert C. Lieberman

Columbia University and Russell Sage Foundation

Through 1 August 1999:

Russell Sage Foundation

112 East 64th Street

New York, NY 10021

USA


(212) 750-6028

Fax: (212) 371-4761



robert@rsage.org
After 1 August 1999:

Department of Political Science

Columbia University

420 West 118th Street

New York, NY 10027

USA


(212) 854-4725

Fax: (212) 222-0598



rcl15@columbia.edu

Constructing Race Policy in the United States and Great Britain:

History and Politics in the Development of Employment Discrimination Policy*

For much of 1999, Americans have scarcely been able to pick up their newspapers without reading stories about racial violence, notably racially charged encounters between the police force of their country’s largest city and that city’s black residents. In February, four New York City police officers shot an unarmed Guinean man forty-one times, killing him and setting off a wave of protests and an investigation by the United States Commission on Civil Rights. In May, one of the New York City police officers charged with the savage torture of a Haitian man in police custody in 1997 pled guilty to several counts, including violating the victim’s civil rights. All the while, columnist Bob Herbert of the New York Times has reported on incidents of less violent harassment of minority citizens by white police officers. In the neighboring state of New Jersey, the head of the state police was fired after a controversy over “racial profiling,” the use of racial characteristics in identifying crime suspects, that also involved a federal investigation.

No, wait, start again . . .

For much of 1999, Britons have scarcely been able to pick up their newspapers without reading stories about racial violence, notably racially charged encounters between the police force of their country’s largest city and that city’s black residents. In February, a high-level government commission issued its report on the poor police response to the racially motivated stabbing of a young man of Jamaican background in 1993. The report found that the Metropolitan Police had long been “riven with pernicious and institutionalized racism” that had contributed to the corrosion of race relations in Britain and it recommended a series of steps to improve the racial sensitivity of the country’s criminal justice system. In April, bombs exploded in two London neighborhoods with large nonwhite populations, leading immediately to suspicions that the attacks were racially motivated.

This brief (and, admittedly, rather arch) comparison serves to emphasize similarities that have long been apparent between American and British race politics. Not only in Britain but elsewhere in Europe, too, countries are struggling with racial diversity in politics and society to an unprecedented degree. Driven in some instances by immigration from former colonies and in others by the demand for cheap labor (and in some cases by both), this new diversity in Europe has spawned a grimly familiar litany of problems: racism; discrimination in housing, education, and employment; political powerlessness; and even racial violence. To Americans, these are the common disorders of a society that has long been divided by race. To Europeans, however, the problem of coping with racial diversity at such close quarters is relatively new. Although Britain as well as other European countries ruled for centuries over multiracial colonial empires while struggling with national integration at home, it is only since the collapse of those empires in the wake of World War II that these countries have confronted significant problems of racial diversity within their own borders.1

Although the racial problems facing these countries may be similar to American racial problems, the responses of European states to racial diversity and its concomitant maladies has been anything but uniform. Countries often conceive of the problems of a multiracial society in entirely different terms, leading them to reach for very different remedies for ultimately similar policy problems. While Britain, for example, has followed the United States in framing race politics in terms of “race relations,” the ability of racially defined groups to coexist on an equal footing in a multicultural society, France has defined the problem as one of “racism,” the illegitimate definition and mobilization of racial categories in a unitary republic.2

But even countries where similar conceptions of race relations and multiculturalism prevail often reach different settlements to address race policy problems that are identically framed. The United States and Britain share a generally liberal political ethos that places a high value on the protection of individual rights and freedom of association, although this is an ethos that has frequently been compromised by alternative political strains that emphasize either homogenization or ascriptive inequality.3 Moreover, the United States has been a constant and familiar point of reference for the discussion of racial politics in the United Kingdom; British intellectuals and policymakers have quite explicitly seen their own evolving problems of racial conflict as similar to American ones and sought to emulate American successes and avoid American mistakes in making race policy.4 As a result, these two countries share an approach to race as a political category that emphasizes both the equal treatment of individuals and the legitimacy of racial groups as social and political units (although these two aims are often in considerable tension with one another).

Despite these broad political similarities and their generally compatible approaches to race as a political category, the United States and Britain have adopted quite different approaches to racial policy. In particular, they have responded differently to one of the most important policy challenges of any multiracial society: job discrimination. American and British employment discrimination policy differ both in the explicit policies they enacted — the kind of discrimination that is proscribed, the structure of the institutions established to fight discrimination, and the powers available to those institutions — and in the ways in which those policies have been implemented. Briefly, British law as enacted by Parliament in the Race Relations Act of 1976 takes a much broader view of discrimination and gives greater potential power to the state than American law as enacted by Congress in the Civil Rights Act of 1964. Ironically, however, American antidiscrimination practice has been much more potent than in Britain. Despite apparently weaker legislation, the United States has developed producing a welter of policies and practices known collectively as affirmative action, while Britain, whose law explicitly authorizes “positive action,” has shied away from such practices. In this essay I explore these differences in the evolution of employment discrimination policy in the United States and Britain and offer an explanation for these differences that focuses on political institutions and the historical evolution of race politics in the two countries. I argue that the critical factor that accounts for these divergent outcomes is the nature of political institutions in the two countries, and in particular the historical trajectories that situated racial minorities differently in two different political systems.5 Whereas American political institutions were from their very beginnings suffused with race, British institutions were not — or at least not so visibly — and the different ways in which race entered American and British politics have had resounding consequences.
History and Sequence in the Development of Racial Politics
From its earliest moments, American politics has had to contend with racial division.6 The first Africans arrived in British North America even before the settlement of the Plymouth and Massachusetts Bay colonies, and by the end of the seventeenth century not only was African slavery central to the political economy of the American colonies but a distinctive American political identity — including the roots of Gunnar Myrdal’s “American creed” of liberty and equality — had emerged out of the distinction between black slavery and white freedom.7

Thus American politics itself evolved in a context where race relations were already a central concern, and American political institutions were themselves structured to accommodate slavery and contain the political conflict that it provoked. The three-fifths, fugitive slave, and slave-trade clauses of the Constitution are obvious examples, but other institutions also responded to the pressures of slavery: the party system, for example, which helped contain (or at least delay) sectional conflict over slavery, or the electoral college, the Senate, and the Democratic Party’s two-thirds rule for presidential nominations, which enhanced the South’s power to keep growing Northern power at bay.8 After the Civil War, political institutions continued both to reflect and to construct race-laden power relations, again through the party system but also through the distinctive political economy of the South, the patronage politics of the North that effectively shut African-Americans out of local power structures, and a Congressional structure that effectively institutionalized Southern power.9

As I have argued elsewhere, this configuration of race and political institutions shaped the development of the American welfare state, forging particular kinds of links between different racial groups and the emerging welfare state in the New Deal.10 Because of the institutionalization of racial hierarchy in the American state, I argue,African-Americans were relegated to a subordinate place in the New Deal welfare state. They were disproportionately excluded from notionally “universal” national social insurance programs such as Social Security and instead were linked to political weak and often discriminatory public assistance programs such as Aid to Families with Dependent Children (AFDC). These programs were parochially structured, meaning that their beneficiaries were linked not directly to the national government through claims based on social rights but to local political structures, with weaker claims on social provision. Thus the particularly weak position of African-Americans in contemporary welfare politics is in part a consequence of the historical sequence of the evolution of racial conflict and the welfare state, and more generally of political institutions: “race before politics.” This historical pattern may also account, in part, for the persistence of racial inequality, even in the face of declining racial antagonism at the level of attitudes and beliefs;11 because American welfare institutions have incorporated African-Americans weakly, it has not helped them escape poverty and dependency as readily as other groups.

This argument, however, suggests an alternative historical path, in which the development of political institutions precedes the introduction of widespread racial conflict into national political life: “politics before race.” When state institutions develop in a society, such as the United States, where power is allocated along racial lines, then the process of state building often involves codifying the racial hierarchy, whether through formal legal structures of domination (such as apartheid) or through less formal, but equally powerful, institutional means (such as the American welfare state).12 Conversely, when state institutions develop without racial hierarchy in society and hence where the political interests of state builders are not racially defined, the resulting institutions need not be constructed so as to preserve racial dominance. I do not intend this as a functionalist claim; the need for racial dominance does not by itself explain the emergence of institutions that preserve it. Institutions, rather, emerge out of contests over power, and they reflect the power resources arrayed in society at the time of their creation. By the same token, it is in the nature of institutions that they outlive the immediate contexts in which they were created, and in new situations they might operate for another purpose (that might seem altogether dysfunctional). The institutions that emerge in the absence of racial division might thus turn out to be quite capable of excluding racial minorities should racial division subsequently emerge in such a society. Neither is it a deterministic argument, such that “race before politics” equals race-laden institutions while “politics before race” equals racially egalitarian institutions. Obviously, countries can overcome even the most virulent legally encoded racism, as the United States and South Africa have done.13 Similarly, neutral, egalitarian institutions alone will not save a country from developing racial inequality.


The sequence argument is, rather, a claim about the tendency of institutions to reflect the distribution of power at the time of their creation. Countries where racial hierarchy is in place before institutional development will be more likely to create political institutions that pose barriers to the full inclusion of racial minorities, barriers that can operate independently of other factors such as racist attitudes or economic forces. Countries where the sequence is reversed will be less likely to develop institutions that are quite so systematically closed to the participation of racial minorities. Pointing out these tendencies, however, does not constitute a causal argument about the reproduction of racial hierarchies and the maintenance of racial inequality or the achievement of racial equality. The sequence argument, then, is also an argument about the political mechanisms through which such institutions are created and through which they operate to maintain racial power.14 Uncovering these mechanisms (and, hence, substantiating the argument I have set forth) will require not only correlating sequences with outcomes but also reconstructing the historical processes by which political institutions both reflect and shape patterns of racial equality or inequality. What kind of institutional universe do racially defined minorities confront, and how do those institutions affect their integration into society and, ultimately, their chances for equality and for protection against discrimination (or worse)?15
History, Sequence, and Employment Discrimination Policy in the US and Britain

As with any other policy development, the story of employment discrimination policy in the United States and Britain is, among other things, a story of the formation of coalitions for particular policy choices in distinct historical circumstances. The question, then, is how did the processes of coalition formation around particular forms of employment discrimination law differ in the two political systems? The implication of the sequence argument has to do with the place of racially defined groups in the institutions that structure the formation and maintenance of those policy coalitions, and the consequent ability of those groups to affect, whether directly or indirectly, the making and administration of policy. How did the particular links between African-Americans and the American state, forged out of the co-evolution of racial politics and American political institutions, shape the strategic calculations of policymakers in the United States? And how did the relative lack of such institutional links, the result of the relative newness of race-making in British domestic politics, similarly affect British policymakers? In order to explore these questions, it is necessary to compare the contrasting historical development of race and institutions in the United States and Britain that produced different configurations of political conditions, in which similar ideas about race and discrimination were translated into different policies.16

In the United States, the political evolution of race politics and the changing position of African-Americans in the political system prepared the ground for the civil rights legislation of the 1960s. The New Deal marked a fundamental political and institutional transformation for African-Americans. For the first time since Reconstruction, African-Americans were part of a national party coalition. The New Deal coalition, which was first assembled in Franklin Roosevelt’s election as president in 1932 and sealed in his landslide reelection in 1936, brought together an odd agglomeration of groups: Southern whites, Northern urban workers (especially “ethnics” and Catholics), Midwestern farmers, Western Progressives, and Northern blacks. The first of these, Southern whites, had formed the core of the Democratic coalition, such as it was, under the generation of Republican dominance in national politics since the 1890s, a period when the Democrats had elected only one president. The others were united primarily by their status as outsiders to the economic and sociocultural orthodoxy of the Republican party, although it took the Great Depression and the skillfully vague and evocative campaigning of Franklin Roosevelt in 1932 (and his more strident rhetoric against “economic royalists” four years later) to draw these fragments together into an effective electoral and policymaking coalition.17

The presence of African-American voters in this coalition was doubly remarkable. First, it marked the end of seventy years of solid allegiance to the Republican party, the “party of Lincoln.”18 Second, it meant that African-Americans, at least in the North, were in a position potentially to wield electoral influence and to reap some of the benefits of national political power in a way that they had not been previously.19 The influence of African-American interests in the New Deal was weak; Southerners, who held key positions in Congress and within the Democratic party, were clearly the senior partners in the coalition and were able to shape legislative outcomes to avoid benefitting African-Americans.20 Despite these clear limits, Roosevelt found areas of common interest that joined Southern whites and Northern blacks, advancing a program of social provision, labor rights, and regulatory expansion that, on balance, benefitted African-Americans more than any administration since Lincoln’s.21 Roosevelt was even susceptible to direct pressure from African-Americans, as when he issued his executive order on fair employment practices in response to A. Phillip Randolph’s threatened march on Washington in 1944.

As African-American moved north in vast numbers during and after the Second World War, their political leverage grew within the Democratic party, particularly in the critical states of the Northeast and upper Midwest where African-American voters came to represent the critical margin that meant the difference between victory and defeat in the all-or-nothing contest for electoral votes in presidential elections. Such, at least, was the perception of Harry Truman, who supported relatively weak (but still unprecedented for the Democratic party) civil rights measures before and during the 1948 presidential campaign. The result was that Southern delegates stormed out of the Democratic National Convention in Philadelphia in July and nominated their own presidential ticket on a states’-rights, segregationist platform, which won four Southern states — and Truman still won the election, largely on the strength of black votes in states such as Illinois, Michigan, and Ohio.22 Civil rights, which had barely divided the parties until then, increasingly drove wedges both between the parties and between wings of the Democratic party through the 1950s and into the 1960s.23

Although growing, African-American electoral power remained weak, especially in the South, where it was nil. African-Americans therefore, sought influence through other means available to them within the institutional structure of American political life. One such avenue was the courts, where a concerted legal strategy led by the NAACP Legal Defense Fund won important victories in outlawing restrictive covenants on property, banning white-only primary elections, and desegregating public schools. Another was protest; Southern blacks created a social movement during the 1950s and 1960s that attacked the structures of segregation through the few openings available in Jim Crow’s formidable defenses, with national repercussions.

This configuration of links between African-Americans and the variegated structures of the American state laid the political and institutional groundwork for the development of the Civil Rights Act in the 1960s, and particularly for its equal employment opportunity provisions. Northern and Southern Democrats had long been divided on issues of civil rights and labor, and that split only deepened as African-American votes in the North became more important to the party’s political strategy.24 Still, the structure of Congress — the committee and seniority systems of the House and the filibuster rule in the Senate — gave Southerners inordinate power over legislation, although this power came under increasing assault from party leaders beginning in the late 1950s as powerful Southerners threatened to block pieces of the party’s national agenda. The Republican party, too, remained supportive of civil rights although skeptical of invoking national power to protect civil rights, putting them in a pivotal strategic position in Congress on civil rights legislation. Meanwhile, African-Americans were developing a range of increasingly institutionalized links with other components of the American state, particularly the courts. Finally, the civil rights movement gave African-Americans an unprecedented platform for political influence in the late 1950s and early 1960s. Two points are essential in assessing these links between African-Americans and the shape of the American state. First, whether conscious or latent, civil rights (and racial politics more broadly) was an essential element in the political strategies of the parties in the middle of the twentieth century, and thus was critical component of the American political order. And second, this deep structural connection between race and American politics was the result of the coevolution of race and politics in the United States through the twentieth century, conditioned on prior historical developments.

In Britain, by contrast, the pattern of linkage between “blacks” — immigrants from the New Commonwealth and their descendants — and national political institutions was entirely different. Unlike American blacks, British blacks did not have a long history of engagement with Britain’s political institutions — or, to put the point more precisely, Britain’s domestic political institutions had not long had to concern themselves with the problem of racial division in British society. The British Empire at its peak had ruled tens of millions of nonwhite subjects, but few had found their way to the home country, creating effective institutional segregation.25 Before World War II, when nonwhites slowly began to find their way to British shores, mostly as merchant seamen, the government found itself unsure how to deal with them, precipitating a dispute between the Home Office and the Colonial Office over whose responsibility they were and what, if any, protections and rights they could claim.26

Without any substantial history either of black participation in domestic politics or of political engagement with racial issues, British race politics through the 1950s embodied what Ira Katznelson has called a “pre-political consensus,” in which the two major political parties did not differ on racial issues not so much because they agreed on principles or policies but because there were no racial issues to speak of, because race as a social category and political axis had not yet penetrated domestic political institutions.27 That began to change in the 1950s, particularly after violent incidents in Nottingham and the Notting Hill section of London in 1958, and for a time the consensus broke down, devolving into a series of policy battles over immigration restriction and race relations.28 In opposition, the Labour Party opposed the Conservative government’s 1962 Commonwealth Immigrants Act, which limited the rights of entry into Britain formerly accorded to those from the New Commonwealth, suggesting an incipient division between the parties. But although Labour won the 1964 general election, a prominent Labour MP and former cabinet minister was defeated in the Midlands constituency of Smethwick, the victim of a notorious Conservative campaign that focused on the purported dangers of nonwhite immigration.29 The ensuing Labour government enacted two Race Relations Acts intended to protect nonwhites against discrimination, further suggesting a partisan split on matters of race and immigration, with Conservatives favoring immigration limits and Labour favoring protective legislation. In 1968, however, Conservative front-bencher Enoch Powell made his famous truculent speech in which he painted an apocalyptic vision of a multiracial Britain. Tory leader Edward Heath promptly sacked Powell from the shadow cabinet, but the overwhelmingly positive public reaction to the speech (and the Conservatives’ electoral success in the Midlands in the general election of 1970) suggested to both parties that extreme racial liberalism was not a winning strategy. In the late 1960s and 1970s, a new consensus emerged in British race politics, combining immigration restriction (the Labour government passed a new Commonwealth Immigrants Act in 1968) and protective legislation for racial minorities (the Tory front bench backed Labour’s Race Relations Act of 1976).30



Despite increasing racialized electoral patterns, a tendency accelerated in the 1980s by the relative indifference of Margaret Thatcher’s government to their interests, race has not come to penetrate British political institutions as it has in the United States. Much of this difference is doubtless due simply to the institutional structure of British politics. Although there are certainly parliamentary constituencies in which blacks comprise a dominant or pivotal voting bloc, there is no British analogue to the electoral college, which effectively makes some constituencies (that is, states) more important than others in the national partisan balance. The party discipline of the British parliamentary system makes intraparty splits, although they no doubt occur, less prominent as strategic openings for policymaking. As a result, despite black voting patterns that have tended to favor Labour quite strongly, the Labour party has made very little effort to incorporate British blacks, whether by offering policy concessions, forging links with leaders of immigrant communities, or working to mobilize black voters; it has, for example, resisted the call for the formation of “black sections” within the party organization to represent and mobilize black voters.31 Above all, it seems evident that the presence of racial division in British politics has done little to reshape the robust preexisting institutional patterns of British politics, which were the result of long and deep prior development. While racial issues have moved on and off the British national agenda over the course of a half century, race has not played the same role in shaping British politics that it has in American politics, where race has long been a central axis of conflict. Thus the sequence of race and political development in Britain left British blacks and their allies less well poised to shape the development and implementation of equal employment opportunity law when employment discrimination arrived on the agenda.


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