REDEFINING EQUALITY by Neal Devins and Davison M. Douglas (Editors). New York: Oxford University Press, 1997. 256 pp. Cloth $45.00. Paper $18.95. ISBN 0-19-511665-8 (paper) 0-19-511664-X (cloth).

Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University. E-Mail: joyce.baugh@cmich.edu.
 

Americans find it difficult to engage in conversations about equality and justice without hostility and rancor, as recent conflicts over affirmative action, majority-minority voting districts, sexual harassment, and employment discrimination have shown. Judges, legislators, and other public officials have struggled with complex questions about the government's role in pursuing equality. Against this backdrop, Neal Devins and Davison M. Douglas have offered REDEFINING EQUALITY. They emphasize that the concept of equality is central to American society, arguing that "[t]he conflict over the meaning of equality is in reality a battle for the soul of America. How we as a nation ultimately choose to define equality will dramatically shape our social and political life." (pp. 3-4). They propose to contribute to the national discourse on equality by bringing together essays by legal scholars, historians, and social scientists from across the ideological spectrum.

In the introductory chapter, the editors describe the book's organizational and topical framework. Topics explored include defining equality, minority attitudes toward equality, equality and politics, and the role and effectiveness of courts in achieving equality; each of the thirteen essays that follow addresses one or more of these topics in varying degrees. At first glance, the selections chosen for this volume appear disjointed, but upon closer reading and reflection one discovers that the essays complement each other quite well.

The first four essays deal with defining equality. Kathryn Abrams suggests that part of the problem in addressing claims about racial and gender discrimination is that federal anti-discrimination doctrine has embraced a "group-blind" approach to equality, which focuses on the perspectives of "perpetrators", rather than on those of victims (or outsiders). She lauds the recent scholarship of feminist, critical race, and gay legal theory for highlighting the latter and thereby "creat[ing] a more comprehensive, complex picture of how discrimination operates and what it means for the life circumstances of those who suffer it" (p. 21). Reva Siegel argues that equality is elusive because even when reforms are achieved, new rules are developed which appear to be neutral but which maintain and "legitimate social inequalities that remain" (p. 30). Utilizing a case study of domestic assault law, she illustrates how the justification for marital violence changed from the chastisement doctrine (the legal right of husbands to beat their wives) to the doctrine of marital privacy. The result, however, is the same -- support for wife beating and gender inequality in marriage.

David Strauss contends that the distinction often made between "equality of opportunity" and "equality of result" is unhelpful. Because equality of opportunity requires the elimination of arbitrary barriers to advancement, "[t]his. . .requires large-scale redistributions of resources -- perhaps not literal equality of results, in the sense that every person must have the same resources, but a much closer approximation to that state than the advocates of 'equality of opportunity, not result' might suspect" (p. 51). This perspective leads Strauss to embrace a broader view of equality that extends beyond race and social class. "If equality of opportunity means that people's fortunes should not be determined by factors over which they have no control, then allowing their talents to affect their fortunes violates equality of opportunity." (p. 54).

Jennifer Hochschild's essay connects the concept of equality with the ideology of the "American dream." She suggests that this ideology, fixated on the ideal of individual "success," is based upon four tenets: (1) everyone has the opportunity to pursue their dreams, (2) individuals "may reasonably anticipate success," (3) success results from individuals' actions, and (4) successful people are virtuous. Because each tenet is seriously flawed, the American dream is defective and, in Hochschild's view, both egalitarian and inegalitarian. It is egalitarian in the sense that it theoretically provides opportunities for all to achieve success, but inegalitarian because "[l]osers, whether individuals or groups, have no value in the ideology except insofar as they are object lessons or potential winners sometime in the future" (p. 77).

Jeremy Rabkin's essay is difficult to characterize under the editors' topical organization. Although it is clear that he advocates a color-blind approach to racial equality (defining equality) and criticizes civil rights groups for supporting ineffective social policies (equality and politics), his primary theme is that courts have obstructed policies that might remedy discrimination. Thus this essay would seem to fit better with the final essays on the role and effectiveness of the courts in achieving equality. Rabkin blames the courts for blocking innovative crime control, education reform, and welfare reform policies that he believes would assist the "black underclass" and "heal racial divisions." His claim that "healing racial divisions" is the "central challenge" of civil rights remedies is problematic, however, since achieving racial justice, not improving race relations, was the primary concern of civil rights activists. In the next essay, Hugh Davis Graham also levies criticism at the "civil rights establishment," contending that the Reagan administration was unsuccessful in its efforts to overturn civil rights policies established in the previous two decades because of the "expansion of public law litigation" by private, public-interest organizations, the use of Title VII's statutory language to provide benefits to new advocacy groups, and the "capture" of federal civil rights agencies and offices by advocacy groups that benefited from their decisions.

In the next two essays, Christine Rossell and Drew Days examine the attitudes of whites and African-Americans toward school desegregation plans. Drawing extensively upon public opinion data on black and white attitudes toward school desegregation in general, and toward busing and alternative desegregation plans in particular, Rossell concludes that there no longer are significant differences between blacks and whites on these issues: black parents, much like their white counterparts, oppose busing and prefer neighborhood schools. Given these data, she maintains that we must "rethink our policies on equality in education because, at least with regard to school desegregation, they have been out of sync with what black parents, and indeed parents of all races, actually believe and want for their children" (p. 120). Days acknowledges that studies indicate that some African Americans may be retreating from the "integrative ideal," established in BROWN V. BOARD OF EDUCATION (1954), but he offers possible explanations. In addition to black opposition to busing, he discusses blacks' advocacy of all-black male academies, opposition from those at historically black colleges to court-ordered higher education desegregation plans, and requests from black students at predominantly white colleges and universities for special facilities for social and cultural events. Days asserts that they are rethinking "BROWN's integrative ideal" because of "the burdens blacks have had to carry in the desegregation process, the degree to which integration requires assimilation and rejection of black values and institutions, and the seemingly intractable problems presented for largely black school systems." (p. 150).

The final five essays -- by Richard Delgado and Jean Stefancic, Gerald Rosenberg, Erwin Chemerinsky, David Garrow, and Neal Devins -- address the effectiveness and role of courts, especially the Supreme Court, in the pursuit of equality. Not surprisingly, the BROWN decision attracts considerable attention. Delgado and Stefancic contend that neither of the two prevailing views about the impact of BROWN -- that it accomplished much or it accomplished little -- is accurate. Their primary point, however, is that it simply is difficult to achieve social reform through law, especially in areas such as race. This is because of what they term "the reconstructive paradox -- which holds that the greater the evil, the greater the need for reform; the greater the reform effort, the more unprincipled and unjust the effort will seem and the greater the resistance it will call up" (p. 164).

Rosenberg's essay, much like his 1991 book, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? argues that the Supreme Court cannot increase support for racial and gender equality. Focusing specifically on decisions regarding school desegregation, affirmative action, abortion, women's rights, and gay rights, he analyzes media coverage of these issues and public opinion data. Given that media coverage did not increase after Supreme Court decisions and public opinion did not change in the direction of the Court's decision, Rosenberg surmises that the Court lacks the ability to change attitudes about equality.

Chemerinsky addresses Rosenberg's claims and Rabkin's earlier contention that courts often obstruct social change. Responding to Rosenberg, Chemerinsky suggests that any analysis of the role of courts must be contextual. "Categorical statements about the ability, or lack of ability, of courts to bring about social change are misguided because so much depends on the particular area of law and the social circumstances surrounding the decisions." (p. 201) While agreeing with Rabkin's general argument that courts have the capacity to obstruct social change, Chemerinsky again argues for a contextual analysis.

In stark disagreement with previous contributors, Garrow accords tremendous significance to BROWN, not in terms of its impact on racial equality, but rather as a critical precedent for the landmark reapportionment and privacy decisions (BAKER v. CARR, 1962 and GRISWOLD v. CONNECTICUT, 1965). In that sense, BROWN enabled the Court to help "transform the modern quest for both equality and personal liberty in ways that have served well the pursuit of justice in America" (p. 205).

In the final essay, Devins, like Delgado and Stefancic, maintains that both conservative and liberal claims about the role of courts in social reform are exaggerated. He suggests that the ability of the judiciary to achieve social reform is limited both by the need to balance competing interests and values in the political process and by the decisions of officials in the legislative and executive branches. In contrast to Rabkin, however, Devins believes that the judiciary should play a significant role in social reform efforts.

Devins and Douglas are successful in achieving their stated goal -- to contribute to the dialogue on equality by bringing together the work of scholars from across the ideological spectrum. The essays are interesting and helpful in presenting some of the major perspectives on equality, but, as the editors concede, debates about the meaning of equality will continue. Finally, it is clear that REDEFINING EQUALITY is not accessible to a general audience or even to undergraduate students. In order to benefit from this work, readers must possess some specialized knowledge of federal civil rights law and the judiciary. Nonetheless, this book should prove useful to scholars, graduate students, and law students interested in exploring equality issues.
 

Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (Chicago: University of Chicago Press, 1991).