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 Laura M. Padilla

excerpted from: Laura M. Padilla, Intersectionality And Positionality: Situating Women of Color in The Affirmative Action Dialogue, 66 Fordham Law Review 843, 853-885 (December, 1997)(432 footnotes omitted)

A common myth is that women of color receive a "double affirmative action benefit" because of their "double outsider" status. A widespread perception is that women of color receive enhanced consideration because of the underrepresentation of both women and people of color in higher education, government contracts, and positions of power generally. For example, "[p] opular belief is that affirmative action is alive and well and that multicultural women attorneys have a double advantage: race and gender." The reality is that while affirmative action has benefited women of color, sometimes helping them with college admissions and other times allowing them to enter and advance in professions previously closed to them, the barriers for women of color remain strong even with affirmative action. "The combination of being an attorney of color and a woman is a double negative in the legal marketplace, regardless of the type of practice or geographic region involved."

In spite of remaining barriers, there is a fight to terminate affirmative action because of the misconception that it is not working. Some critics argue that affirmative action does not help minorities or women (they are usually silent on women of color), and thus should be terminated. The statistics say otherwise. "As a general matter, increases in the numbers of employees, or students or entrepreneurs from historically underrepresented groups are a measure of increased opportunity." This increased opportunity is not coincidental--over 6 million women have obtained employment opportunities because of affirmative action. Affirmative action's effectiveness becomes clearer when comparing women's membership in various professions before and after its implementation. In the medical profession, women made up 7.6% of all physicians in the United States in 1970, but had increased to 16.9% in 1990. In the legal profession, women made up approximately 3% of all lawyers in the late 1960s, but had increased to 23% in 1994. Furthermore, over the course of a single decade, the number of female attorneys of color went from approximately 7,300 to 23,000. These increases are encouraging, and they demonstrate that affirmative action has been effective for women of color and should continue in effect.

These successes, however, must be tempered with sobering statistics which show that women generally, and women of color especially, have a long way to go. The double-dip myth becomes ever more mythical when considering current statistics. An analysis of women in major New York law firms indicates that while the number of women partners increased steadily throughout the 1980's, "there was a sharp drop-off in new women partners after 1990." In 1995, while 13.43% of the partners in this country's major law firms were women, only 2.79% were minorities. There were no statistics on what percentage of those minority partners were women, but I can safely state that it was fewer than 2.79%. In fact, there are so few partners who are women of color, they are statistically insignificant. In a hearing regarding the glass ceiling, one woman testified that she "found no statistical data concerning promotion of minority women to partnership. They are indeed the invisible minority." One newspaper article explained: "Minority women fare the worst. They have the lowest percentage of entry level jobs in law firms, following white men, white women and minority men." In fact, fewer than 3% of all lawyers and judges are minority women. Note also the dearth of statistics on women of color. They are hard to find because until recently, women of color's existence, much less their particular issues and concerns, had not been discretely considered, and certainly was not doubly celebrated.

Not only are there few attorneys who are women of color, but those who have entered the profession face greater obstacles than either men of color or white women. An ABA committee summarized the reasons as follows: "(1) stereotypes that limit job opportunities, (2) failure to be recognized as competent, (3) failure to advance as rapidly as others, (4) undue difficulties in attaining partnership status, (5) pay inequities, (6) insufficient mentoring, and, (7) heightened scrutiny of hours, work product and performance." The ABA also established a joint project, called the Multicultural Women Attorneys Network ("MWAN"), to study issues of concern to female attorneys of color. It conducted hearings across the country and made the following findings:

The combination of being an attorney of color and a woman is a double negative in the legal marketplace, regardless of the type of practice or geographic region involved; Multicultural women attorneys perceive they are "ghettoized" into certain practice areas and other options are closed or implicitly unavailable; Multicultural women attorneys must repeatedly establish their competence to professors, peers and judges; As evidenced by continuing attitudes and negative stereotypes, multicultural women attorneys are invisible to the profession and have more difficulty achieving prominence and rewards within the legal field; To succeed, multicultural women attorneys must choose between race and gender; and, Minority women lawyers face barriers of gender discrimination in minority bar associations and race discrimination in majority bar associations.

Affirmative action has done a credible job of getting women of color into some power or prestige professions, such as law. It would seem to follow logically that as women entered these fields, they would change their structure and dynamics, making them more hospitable for women generally and women of color specifically. This is not happening, however. While a significant number of women have entered the legal profession over the last twenty years, they have not made as much progress in promotion. Nor are they represented in positions of power in the legal profession. The situation for women of color is obviously worse. Not only do they have to contend with gender bias, they deal with racial bias from majority men and women. Thus, instead of seeing a double advantage, one frequently sees a double negative. "Often, white women attorneys are uncomfortable or unconcerned about addressing race or ethnicity issues. Generally, multicultural women feel ostracized by white women and believe they carry the responsibility of rectifying their own outsider status." Thus, discrimination as well as other barriers continue to haunt the small percentage of women of color who actually enter the legal profession. Until these barriers are eliminated, affirmative measures are still necessary to enable women of color a chance to succeed in the law.

The situation is not much different for female law students of color. They also suffer from relative invisibility, especially compared to white students who are considered the "norm." In describing the atmosphere at Yale Law School, former students noted that:

Entirely absent were images of women and men of color. These surroundings kept us distrustful, reminding us that the institution that admitted us had traditionally denied entrance to women and people of color. The pictures, the furniture, the male professors--all indicated that the place had always belonged to white men.

One report described the grim experiences of women law students of color "primarily in terms of their battle against the credibility problem, which encompasses both the phenomenon of invisibility and the presumption of incompetence." The process of fading women of color into invisibility occurs on many levels. For example, while they may consider themselves as healthy, whole persons comprised of multiple identities, female students of color are often asked to excise portions of their identity by being forced to choose between outsider status on the basis of either gender or race. Thus, their wholeness vanishes. Their classmates, law professors, and law school administrators also contribute to this fading and fracturing process. Classmates may exclude them from study groups, clubs, moot court, and advocacy, negotiation, or other competitions, as well as social activities. Law professors are notorious for disproportionately calling upon white males. This is even worse for the female of color who gets the nerve to raise her hand, only to be ignored repeatedly. Even if she is called on, her comments are often overlooked or attributed to someone else. Administrators also contribute to the invisibility of women of color, even if unintentionally. For example, they do not include as many of these students as school spokespersons, as tutors, as advisors, or in other representative capacities. Once again, intersectionality that could be celebrated is instead used against women of color.

The dual burden on women law students of color both perpetuates some patterns that commenced earlier, such as the breeding of self-doubt, and results in new and different forms of silencing. These are the experiences of women law students of color with affirmative action. This speaks of the need to strengthen affirmative action for women of color and to institutionalize multiculturalism so that the entry benefits of affirmative action are not lost in outdated but deeply ingrained institutional racism. Without affirmative action, future generations of attorneys will lack the richness and diversity that women of color bring to the practice, academy, and judiciary, and women of color, the legal system at large, and society as impacted by law will suffer.

Women of color are also noticeably absent in leadership roles in higher education. A study on the status of California's higher education pointed out that of its thirty-seven top executives, 70% are white, 14% are African- American, 8% are Latino, and 3% are Asian. While 22% of the executives were women, each chief executive officer was a white male, prompting an analyst to point out that "this group is less diverse than it was a decade ago." The University of California's team of top executives, the most prestigious of California's higher education leadership, was the least diverse, with "no Asians, Latinos, or women [who] serve at the vice president level or above."

In other professions, the doors have barely opened for women, much less women of color. For example, only 3% of firefighters, 8% of police officers, and just over 2% of construction and trades workers are women. The doors to these professions have opened only a crack with affirmative action. Imagine how tightly shut they will be if affirmative action becomes illegal.

It is clear from the information in this section that women of color are not doubly benefiting from affirmative action. While affirmative action has resulted in increased opportunities for women of color, they are still underrepresented in higher education, government contracting, and positions of power across the board. On the same day that I am writing this, I read that women currently hold only "500 of the 7,213 directors' seats of the Fortune 500, or 6.9%, and minorities hold 244 directors' seats, or 3.4%." While this is concededly better than the 0% figure which I would have read about not so long ago, it remains a challenge to get into those positions, and once there, the work has just begun. Many women of color are struggling even with the benefits that affirmative action offers. If affirmative action disappears, opportunities for women of color will decline. Furthermore, women of color who have advanced partly because of affirmative action will need to tread cautiously because protective measures designed to prevent discriminatory behavior may well disappear.

In sum, the information in this section not only exposes the double- benefits myth for what it is--a myth--but more importantly, it magnifies the need for affirmative action for women of color. Affirmative action has improved lives for many women of color, but it is just beginning to do so. It is pivotal at this stage to continue affirmative action programs in order both to allow the women who have entered schools and professions the chance to progress in environments that are not hostile and discriminatory, and to make equal entry opportunities available to more women of color.

Myth: Women of Color Double Dips
Myth: Women of Color Double-Dip From Affirmative Action
Myth: Justified Only Under a Perpetrator-Victim Model
Myth: Affirmative Action Beneficiaries are Stigmatized
Myth: Affirmative Action Disregards Low-Income Persons
 
 
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Thanks to Derrick Bell and his pioneer work: 
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