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Monday, January 23, 2006

Kenji Yoshino's "Covering"

Kenji Yoshino, a brilliant young law professor at Yale Law School, has just published Covering: The Hidden Assault on Our Civil Rights.  I haven't (yet) read the book, but I did read his adaptation in the New York Times Magazine last week (unfortunately, it is now only available on a subscription basis) as well as numerous book reviews.  Also, I had the pleasure of hearing him lecture on this topic when I was a law school student.  I think Yoshino is brilliant and erudite, and his work is provocative.  But in certain ways I also think he is wrong.

First, a brief overview.  My apologies if I don't do his argument justice.  Yoshino maintains that our traditional view of civil rights, based on principles of equality, is too limiting.  Civil rights law protects from discrimination based on immutable qualities (race, gender, national origin, religion (query whether religion truly is immutable), and (in some jurisdictions) sexual orientation).  It does not protect behavior, however.  For instance, the law protects a black person from getting fired on account of being black, but it does not protect her from getting fired for "acting" black.  (The example used by Yoshino is a black woman who wears her hair in a distinctively black style.)  As a result of this lack of protection, people must "cover" their true natures and identities.  They aren't passing as something they aren't, but they are covering: muting their own qualities in order to "fit in" with the mainstream.  Yoshino points out that everyone covers--everyone has some trait or traits that she try to mute in order to be accepted as normal--and argues that this limits the full range of human identity and expression.  In short, he favors a liberty-based vision of civil rights over an equality-based vision.  In a wise and humble move, though one that might leave someone searching for answers unsatisfied, Yoshino concludes that the change he envisions in the civil rights model will not come from courts, and ultimately not even from the law itself, but rather from collective understanding, tolerance, and embrace of the range of human behavior and expression.

I agree that we should be far more tolerant of differences in expression and behavior than we currently are.  As a practicing Jew I am always aware of my minority status within the dominant secular and/or Christian culture, and at times I feel the pressure to cover.  That pressure can either be socially imposed or internally imposed.  It can be a difficult feeling, and I'll bet that each of us, as Yoshino says, covers in some way or another.

At the same time, however, I strongly believe that there is a value in conformity.  It seems to me that the melting pot ideal--with all of its limits--is still a worthy ideal; and surely the melting pot calls on us all to conform and cover.  I fear that Yoshino's argument, if taken to its logical conclusion, leads to a world in which we can all respect each other--a laudable goal--but in which we cannot talk to each other.  After all, our communication and identification is based on our common and shared experiences.

Thus, I do agree with Yoshino that a black woman should not be fired for wearing her hair a certain way; that a woman should not be fired for marrying another woman; that an orthodox Jew should be permitted to wear a kippah (yarmulke) in the military; and so forth.  So insofar as Yoshino is calling for greater tolerance on the part of individuals and employers, I strongly agree with him, and it strikes me that this isn't a particular radical position.  But insofar as he envisions a future in which we embrace the idea that there is more that divides us and our behaviors than there is that we share, I am very wary.

Posted by Hillel Levin on January 23, 2006 at 11:02 AM in Hillel Levin | Permalink

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Comments

Hillel, great post. I have not read Kenji's book, but I am curious about how he proposes we identify those behaviors that are part of our "true natures and identities" and the avoiding of which constitutes "covering." How, in his view, would / should we distinguish the behaviors that we would want, under a liberty paradigm, enjoy greater protection from conduct that simply happens to be engaged in by people (i.e., all of us) who have "identities"?

Posted by: Rick Garnett | Jan 23, 2006 11:17:50 AM

Thanks Rick. The NYT magazine article (which you should read if you have a Lexis account or other access--it is pretty short and very well-written) is very sketchy on this question. I assume that it is better fleshed out in the book. There is a thin line between doing "whatever I want" and "expressing myself honestly." I'm not actually sure the line exists. But I am sure that Kenji has thought a great deal about this, and I'd be eager to see what he has to say. I expect that I'll read the book.

Posted by: Hillel Levin | Jan 23, 2006 11:23:19 AM

Hillel: the issue in anti-discrimination laws is not whether an employer should prohibit you from wearing a kippah, but whether the government should prohibit an employer from prohibiting you from wearing a kippah.

I may agree that self-expression in the workplace is good, but it doesn't mean I agree that the government should stick its nose into regulating hairdos in offices. Just as I think that burping in public is bad, but not something that the government should regulate.

Posted by: Kate Litvak | Jan 23, 2006 1:51:27 PM

Admittedly, I have not yet read the whole book, just Yoshino’s smaller piece in the NY Times Mag. That said, I think your critique is strained to the extent you envision a world where people “cannot talk to each other.” Why would protecting marginal / more-non-conformist behavior mean that we will end up in a world where differing viewpoints cannot engage and compromise? It seems that you (and Yoshino) both argue that we all cover – so, rather than distance, isn’t there commonality in our marginal behaviors? Indeed, wouldn’t protecting the non-conformists’ behaviors (as opposed to just those individual's classifications as black, gay, jewish, etc.) actually inform a more worthwhile conversation?

Posted by: M | Jan 23, 2006 1:56:53 PM

Kate:

I think you are focusing on something orthogonal to my post. Nowhere did I outline the conditions under which the government should "stick its nose in." And Kenji's conclusion (whether satisfying or not) is specifically that this won't come from the law. You want to talk about anti-discrimination *law* as it is; Kenji and I are talking about discriminatory *practices*. I don't know whether Kenji thinks that "black hairstyles" should be protected by antidiscrimination law, but he emphatically thinks that people should not be fired for sporting such hairstyles--in other words, the case should never have come to court because there never should have been a case to begin with.

But taking you up on your offer, I plainly believer that sometimes the government should stick its nose in and sometimes it should not. I'm certain you agree, though I'm not certain we agree on the "when." (By the way, the kippah case is not about private employers, however; it is about the military, which is very much a government employer.)

Posted by: Hillel Levin | Jan 23, 2006 2:07:42 PM

M:

The bottom line is this: I value conformity. (This is why, for instance, I strongly support same sex marriage. It urges same sex couples to conform to the mainstream--to cover, in a sense. And this is why some gay rights advocates *oppose* same sex marriage. (I'll post more about this--whether same sex marriage is covering or its opposite--later this week.))

Some people are loud; others are quiet. Some are rude; others are overly accomodating. Some like to wear pants that don't reach the tops of their socks. Some like to pray in the middle of business meetings. I'd rather that people cover these traits in the workplace in order to maintain conformity and professionalism.

As I said, I agree with Kenji's critique in most of the individual cases he cites (the "black hairstyle," the "lesbian marriage," the "orthodox soldier")--people shouldn't be fired for these reasons. But the overall vision he articules is far more sweeping. The loud person, quiet person, rude person, accomodating person, too-short-pants person, and the prayer aren't going to all bond over their celebrations of difference.

Posted by: Hillel Levin | Jan 23, 2006 2:16:58 PM

Hillel: I have not read the book, but the title mentioning "civil rights" immediately gets me worried: if one's choice of a hairdo is a "right," then, the government's job is to enforce that right, no? I am open to chatter about social benefits of "expressions," so long as "expressions" do not become "rights."

(By the way, that Air Force kippah case is one of the very few Con Law cases I actually know, but I thought we were talking about your hypothetical kippah, not a particular case).

Posted by: Kate Litvak | Jan 23, 2006 2:25:24 PM

Kate:

First, I don't think I mentioned anything about my personal kippah in the post; unless I'm mistaken, I pointed directly to the military case--a case that Kenji highlights as well. On the kippah front, though, I will say this: if we believe that one should not be fired for religious expression (with the bona fide business exclusion safety valve, of course), it is hard for me to understand how one could be fired for wearing a kippah if one believes that he is required by his religion to do so. (I personally do not so believe, but I do know some who do.)

On to the more important issue: you are right. The use of the phrase "civil rights" obscures more than it illuminates. In the end, at least insofar as I can tell from the article (not yet having read the book), Kenji is really just talking about the value of social acceptance--free to be you and me and so forth. He recognizes the limits of "civil rights," and I don't quite think he's trying to extend them. But there is certainly a tension there. I hadn't really focused on the title, but I'm in agreement with you that firing someone for a hairstyle, while quite disgusting in my view, isn't exactly an assault on civil rights. (That term might better describe the NSA's wiretapping porgram.)

Posted by: Hillel Levin | Jan 23, 2006 2:34:04 PM

Fun topic. A bit of a clarification is in order, perhaps, about one point. The reference to the black woman being fired for her distinctively black hairstyle is a bit ambiguous. The relevant case here is Rogers v. American Airlines 527 F. Supp. 229 (SDNY 1981). Renee Rogers was not, properly speaking, fired for displaying an African-American aesthetic. In a sense, it was the opposite. The judge declared that her hairstyle derived not from a history of black oppression but from a simple idiosyncratic style choice, as represented by the corn-row style made popular by the undeniably Caucasian Bo Derek in the movie *10*. Therefore, Rogers was fired precisely because the judge failed to see anything racially distinctive about the hairstyle, not necessarily because the judge wanted her to conform to a "white aesthetic".

If anyone is interested about the role of "covering" (although I don't call it that) in the context of racial bodily aesthetics and the law, I have an article on it and I'd love to hear any reactions (good or bad): John M. Kang, "Deconstructing the Ideology of White Aesthetics," 2 Mich. J. Race & L. 283 (1997).

Posted by: John M. Kang | Jan 23, 2006 5:46:13 PM

Thanks John. I am aware of the case and the judge's argument, but let's just say that we law students got some entertainment value from the absurd denial of the predominantly black aesthetic of the hairstyle. She wasn't fired for looking like Bo Derek even if it was her intention to look like Bo Derek. The judge himself recognized the weakness of this claim and fell back on the position that civil rights law does not protect mutable qualities like dress--regardless of why we dress the way we do.

Posted by: Hillel Levin | Jan 23, 2006 8:29:45 PM

Here is a permanent link to the New York Times article.

If you want to blog about NYT stories, use this submission form to get a permanent link:
http://nytimes.blogspace.com/genlink

My thoughts on the issue of cover and discrimination:

There seems to be some conflict between the traditional reason for rejecting race or sex based discrimination and defending a persons ability to "not cover," or express themselves freely. Discriminating based on race and sex have been condemned as judging people based on stereotypes rather on how a person actually acts. Now, Kenji wants people not to judge people because they do, in fact, fulfill a stereotype. Previously, a person would be condemned for assuming all (or most) gay men were flaming. Now, he wants the right to be stereotypically gay, without the discomfort that people might be judging him as such.

Second, I found the NYT article frustrating because for most of the article Kenji is implying that the courts have somehow failed us by not stepping in and forcing employers to conform to Kenji's preferred level of tolerance, but then at the end of the article Kenji seems to admit that the courtroom is not the best place to address cover. Rather, society must deal with these issues. I agree with the conclusion, but I found large parts of the lead-up misleading or irrelevant.

Posted by: c&d | Jan 24, 2006 1:16:24 PM

As the many unanswered questions above suggest, I think that the "covering" concept is just a convenient blanket that Kenji happens to throw over a wide range of barely related topics that happen to make the memoir portion of the book look relevant to law. When one reads it, it's clear that the real passion is for telling his own story, and the effort of trying to connect it to something a wider audience would care about is the chore. Thus the portmanteau title.

Ultimately, each of the areas he mentions include both aesthetic matters/issues of taste (which are not the concern of law at all) and moral concerns that are at the core of identity properly understood. The book itself is so light on normative argument that he clearly hasn't a clue about how to sort these out.

That's why the call for a move from legal to cultural change is so predictable, and so unsatisfying. The former "register" of debate would require him to actually distinguish between the essential and the ephemeral in identity politics. The latter just opens up an endless dialogue about feelings.

Posted by: Robert | Jan 24, 2006 8:07:55 PM

One person's "aesthetic matter" is another's "moral concern." The "essential" and the "ephemeral" should only be distinguished with good reason, and that is why I think Kenji avoids doing it. And yes, without the distinction, we do need to move beyond the grasp of the law.

What the "many unanswered questions above suggest" is that most of the people commenting on this thread have not yet read the book.

Posted by: Bill | Jan 26, 2006 11:25:02 PM

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