you have diversity with respect to identity, with respect to experiences, you have deversety -- all those are different wives thinking about diversity. >> how does the law define diversity. >> the law doesn't offer a definitive account of diversity. the initial are circulation of diversity arose in a case called barkley, an aaffirmative action case. >> host: in california. >> guest: the court was deciding the constitutionality of affirmative action, and it's important to pause and think about how diversity is processed

so we can think through how the diversity rationale came into being. when the court thinks is affirmative action legal, it applies a test that is you would a reply to whether jim crow is legal so the same snared we apply to determine whether affirmative action is constitutional. and if you use the same standard with affirmative action, you can say those or two different wives thinking about race. it is in that context that the diversity rationale comes into being and its first articulation focuses on fifth amendment values if institutions of higher learning have to structure the academic mission of the university. then it's broadened, to think about institutional culture. to what extent does it matter to have meaningful representations

of underrepresented groups in order to have a diverse environment so people don't feel stick my tiesed -- stigmatized. marginalized. the initial articulation focuses on first amendment val. >> host: the bachy keys, 1970s med school. a white gyranted to go to med school. what's the thanksgiving and effect? >> guest: the outcome is you have a concurrence by justice powell that essentially said, affirmative action is constitutional, that you can take race as one factor, among many in deciding which students to admit. just a single concurring opinion but became the law of the land you can take race into account in deciding how to construct your student body, and the factors that it's made american institutions of higher learning for more diverse than they otherwise would.

to put it another way we should think about diversity mass some ways the vehicle or affirmative action more precisely, the vehicle for carrying four a browns commitment integration. without affirmative action the sad truth is that american institutions would be close to racially segregated. >> host: have there been shall changes over the years. >> guest: it's been challenged any number of times and there will be future litigation on affirmative action. the pickle i won't get into but i think since bachy there's been ongoing litigation challenging aaffirmative action. it's still constitutional. the supreme court has not said otherwise little but that doesn't mean it won't continue to be alcohol chenged. >> host: professor carbado is the co-author of this book: acting white question mark,

rethinking race in. >> whats mean to act white. >> guest: i want to emphasize the question mark. it's the sort of understanding how we think about discrimination. if i would ask you, for example to articulate your classic example of discrimination, and the contemporary workplace, you might si it involves a moment in which some decisionmaker picks a white person over a black person. that's the quintessential example elm went to present another kind of discrimination, where a company might say we went person a, black person, over person b, black person, and want to suggest that's a kind of discrimination about which we should be concerned as well. the easiest way for me to explain what that might look like is to move from race in a minute and think about gender. take you back to 1970sed. in that context employers, particularly airlines, were say something like this. we're happy to hire women, but

we want women who are not married, and we want women who don't have children. >> host: and certain size. >> guest: a certain size. and the plaintiff would say that's discrimination. they would say, wait a minute. we're not saying we're not hiring any women. we're not saying we're hiring men over women. we're saying we want a particular kind of women. there's make an intragroup difference elm we want women but we want to think carefully which women we want. eventually the courts came to conclude that is sex discrimination. this fact you're picking some women over others done mean it's not sex discrimination. in other words, just because you're not saying, we want men and not women, doesn't mean that it's not sex discrimination. when you say we want some women over others. we're saying something like that is happening with race as well. when an institution might say, we want black people so long as they don't present as too black.

we want black people so long as they're not saliently black, we want black people as long they don't overly identify as black. one more example and then i'll stop. think about discourses about sexual orientation. remember the militaries "don't ask, don't tell," which is no longer part of the scheme but the "don't ask, don't tell" policy was based on the idea that we'll have you in the military so long as you don't announce your identity. so employers make the same move with respect all the time. it's okay if you're gay. just don't flaunt it. it's not that we don't want any gay person. just gay men, don't act like women. lesbians-don't act like men. that kind of dynamic we get in the sexual orientation, we're pushing that framework as respect to race.

>> host: has the law acted on this question of too black, too gay to whatever? >> guest: not on the too black front. on the too gay front, interestingly, yes. so your see ares might by surprised to learn at least are in federal law it's still per miss table say we're not going to hire any gay person. a firm can say that today under federal law because the federal discrimination regime, title 7, does not cover discrimination on the basis of sexual orientation. lots of state laws do but the federal law doesn't. but interestingly there's a body of case law that says, if it's the case that you discriminate against a gay person, not because they are day per se but on the view that you are too efem efeminine. that is a actual discrimination. when you say you discriminated me based on me sexual orientation, that won't carry the day.

that person can say you discriminated against me on the basis of my perceived efem anyone simple that's a recent. the bulk of cases on this point say, if you bring a claim just asserting that's employer discriminated against me on the basis of my sexual orientation you lose. you need to pitch that in the rachael of second all orientation. >> host: one over cases you talk about in your book, acting white, question mark, is rodgers vs. american airlines. >> guest: a case decided in the 1970s. and it comes from something lick the following factual backdrop. american airlines had a policy, grandmotherring policy that said you cannot come to the workplace

to the extent you have braided hair. that is unprofessional. so, renee rodgers brings suit and says that is -- >> host: african-american woman? >> guest: an african-american woman. bridges suit. she wore her care and braids' taught this presented a discrimination problem and made different kinds of claim is. an argument that-a., this racial discrimination. she said it's race and sex discrimination. going to particularly attack black women. the court rejects all of those claims, and the court's exhibit a for why this was not sex discrimination is bo derek. move the movie "10" and her braids? look at bo derek, bo derek wore braided. there's nothing race pick about that. not going to have a racial impact. it's now biologyized race, the court said. you, black woman, rep anyway rodgers do not get to make a

claim of discrimination because white women braid their hair as well, and being just a tad bit tongue in cheek how i describe the rationale bit goes to something like that. >> host: is that still the law of the land? can american airlines have fromming standards? >> guest: yes. yes. they can indeed, andlets of formed have grouping standards. one grooming standards. one of hi favorite tragic cases on this involve mott a black bomb but a white woman in nevada. it's harrah's kind, they have a grooming policy that it's very specific with respect to how women must come to workings and how men mississippi u -- men woman to corks. women must wear makeup, get dahled, groom their hair in a -- i. a men have grooming standards as well. so the brings a claim of sex discrimination again. the court says, it's not actionable sex discrimination. this time the court's rationale

guess something like this. men are subject to grooming standards as well, so the regiment that harrahs put in place puts an equal burden on men and women. so because men can't have long hair, because men can't wear earrings, et cetera, it's perfectly fine for the kind -- casino to say you need to wear makeup. the create created a false formula to say there's no sex discrimination in the case and she lost. so lots of interesting cases on grooming standards that you might think would raise a question of discrimination as the basis of race or the basis of sex or possibly both, but by and large, plaintiffs in those cases lose. >> host: professor carbado, who is your coauthor? >> a teacher at duke. >> host: and you talk about the concept of a working identity. >> guest: yes.

>> host: what is that. >> the basic idea is if it's the case that one thinked that an employer might be making choices about you based on whether they perceive you to be overly masculine or overly feminine or overly black or not, that creates pressures on you to present yourself in a particular lay. let's go back to the american airlines case. if i know that an employer is going to think about my professionalism as a function of my hairstyle, i might not wear braided hair. i might straighten my hair. might comport myself in a particular way in order to signal to the employer that, look, i'm not the black person you think i am. that is a sense in which you mean to say that people work their identity. they try to use their identity to communicate some message about who they are that will rebuff a stereotype that the employer might have of them.

you can ask yourself whether that enacts a kind of everyday toll. if your move in the workplace every day is structure by this way of being that are fundmentally designed to tell a particular story that you think you need to tell about yourself in order to do well at work. so we try to suggest that working identity over and over again enacts a kind of cost, can result in denial of the self and can produce an unfairness that the law typically doesn't recognize. >> host: has there been any cases that have involved that, that have been successful. >> guest: answer again, no. part of what we wanted to do in this books to shed light on this issue because we think it will result in people thinking more about the extent to which empirically this is so and also to move our understanding in ways that ultimately might shift where the law is. currently these are not claims that are -- phenomenon needs to

be named before they become actionable. once upon a time a black woman could not bring a claim of discrimination on basis or race and sex. courts would say if black men are not discriminated against it's not race discrimination. if white women are not discriminated against it's not sex discrimination. so, go away, black woman. whatever you're experiencing, it's not discrimination because black enemy and white women are not experiencing it. those cases were not historically cognizable. now they are. why? because people like my colleague, kimberly crenshaw, introduced theories that shifted our courts think about this matter. before one brings it to the fore, wasn't can't expect law to do that much about it. we want to write this book as a conscious exercise. at least have a debate. don't have to agree with my but at least have a debate about thinking about discriminationy something else you refer his is joe biden's ranks about barack

obama before he was elected president and forme majority leader harry reid's remarks that obama had a rome chance of success in part because we spoke, quote, with know negro dialect unless he wanted to have one. >> guest: there you have, i think, a pop cultural reference in the political context or political reference in which the phenomenon i'm describing is one that we have heard before. so, that particular reference suggests we have some sense of what it might mean to quote-unquote talk black, and whatever that sense is, barack obama doesn't manifest that, at least in instances that biden thought relevant to name. so, the point is that talking black is one way of thinking about the acting whitephone but there's the acting white dimension, too.

i want to say onemerring to to be clear. nice true way to act black or act white. let's be absolutely clear about that so one does not leave this conversation thinking i'm saying this is the dui act white and the way to act black. that's note claim of the book. the opinion is that people nevertheless have some understanding of what it means to act black and what it means to act white. they're not ex-step chalet -- innings stenchalet given and there's are studies that when you pick up the phone and hear a person speak you make some assumptions about that person's racial identity. not just the look of race that we employ to determine whether you're in and out of a category. it's the talk of race. it's your speech that allows to us map you into categories. >> host: you are you from. >> guest: i was born in the uk, been in birmingham, and grew up in london and came to the u.s. when i was 18, went to college

and the rest, as assay, is hit. >> host: where detroit go to college? here, ucla. >> host: is this book "acting white question mark" written for a general audience. >> guest: general audience. it's true there are specific theories and laws that are the basis of the book but we try to write it in a prose that is accessible to your average reader and hope that we succeeded in doing so. >> host: acting white question mark is the national of the book, rethinking race in post racial america. you're watching booktv on c-span2. and we are at ucla today. >> every weekend booktv offers programming focused on nonfiction authors and books. keep watching for more here on c-span2, and watch any of our past programs online at booktv.org.