|
Article Excerpt
INTRODUCTION
I. RACIAL INCLUSION AND THE FORMATION OF AN "INTEGRATION SUCCESS STORY". II. INTERROGATING INTEGRATION SUCCESS NARRATIVES A. Gender Integration: A Success Story? B. Gays and Lesbians: The Effect of Exclusion on Integration Success Stories C. The Death of Race- and Gender-Consciousness and Integration Success III. ASSESSING THE DANGERS OF PERCEIVED INTEGRATION SUCCESS A. Integration Success and Identity Performances within the Military 1. Myriad Strategies for Managing Multiple Identities in a Colorblind World 2. Ineffective Assistance of Performance? B. A Promotion Data "Snapshot" and the Limits of Integration Success 1. Navy JAG Active Duty Commander Promotions 2. Deciphering the Data: Of Missing Categories and Low Sample Sizes IV. DEFENDING IDENTITY CONSCIOUSNESS: REVISITING THE CASES AND RESURRECTING DEFERENCE? A. Arguing Saunders as Incorrect B. Crafting an Identity-Conscious Solution Under Saunders C. Equal Opportunity, the Courts, and Military Deference CONCLUSION
INTRODUCTION
It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale. (1)
With the issuance of Executive Order 9981 on July 26, 1948, President Harry Truman, in his role as Commander-in-Chief of the United States Armed Forces, effectively signaled the racial integration of the United States military. (2) While this blow to racial segregation was not without enemies, (3) the Order was ultimately followed without crippling, defiant opposition, and it became a harbinger for increased civil rights for people of color, inside and outside the military. (4)
With regard to race, and increasingly with regard to gender, the military experiment in social engineering has been heralded generally as a great success. (5) The central point of this Article is to question whether the praise afforded this success story is truly warranted and to explore a disjuncture that may exist between this positive narrative and the lived experiences of service members. Given the number of minorities, in particular African Americans, who have used the military to improve their life conditions, (6) it is with some reluctance that this Article criticizes the praise that has been accorded the organization for its success at including minorities. (7) This Article will suggest, however, that although the Armed Forces have done much to alleviate the effects of racial discrimination and subordination within the Services, some important work remains to be done with regard to managing opportunities for service members across myriad identities. In particular, attention needs to be paid to the unique challenges that face service members disadvantaged along multiple dimensions of difference, (8) such as women of color. Consequently, this Article seeks to interrogate the continued viability of an integration success narrative where there exists disconfirming evidence and in an environment where the most significant challenges to minorities are related neither to bare inclusion nor mere elimination of instances of overt discrimination.
Specifically, this Article argues that the military services, like many institutions, must grapple with problems related to unconscious bias, (9) which Professor Lu-In Wang has recently described as "unconscious cognitive and motivational biases that lead us reflexively to categorize, perceive, interpret the behavior of, remember, and interact with people of different groups differently." (10) Belief in the continued veracity of an unchanging narrative of successful integration undermines a commitment to uncovering and solving such problems. By dislodging the story and acknowledging the effects of unconscious bias, the Armed Forces will be better able to address the ways in which some use identity--race in particular--as a tool to stigmatize, dishonor, and disfavor group members based on their perceived characteristics. (11) As it currently stands, the operation of unconscious biases interacts with Armed Forces' institutional policy choices--such as a commitment to formal equality achieved through race- and gender-neutral regulations--and organizational social norms to negatively shape the work "performance" (12) of women and minority service members. Performance, then, which serves the dual function of measuring skills competence and reflecting assimilative conduct, becomes the basis to limit the promotion and retention prospects of these same groups.
This Article critiques the current state of integration within the military through an analysis of the ways in which identity markers such as race and gender still matter. To that end, the Article applies theories related to the social construction of identity, (13) to explore and reveal how women and people of color must still manage the effects of identity stereotypes, even within an organization that has been heralded as a model for successful inclusion. The Article suggests how, without an organizational commitment to meaningful identity-conscious policies, the essentially required identity performances of women, people of color, and gays and lesbians prove to be unsatisfying practices to ensure their success within the military. These circumstances thereby undermine the strength of any true integration story. Further, it argues that individuals who inhabit multiple identity categories must engage in greater feats of assimilative conduct to fit in and might, therefore, be at the most significant disadvantage in terms of promotion and retention within the military. (14) In essence, with regard to the effects of "working" their identities, (15) this Article contends that these individuals must negotiate a contemporary version of a "double bind," (16) where their differences make it difficult to fit in along white and male social norms, (17) but where assimilative conduct may provide inconsequential relief. (18)
Part I of this Article presents the predominant story of military integration success for race. Part II, however, suggests the various ways that this success story is problematic. First, Part II.A asserts that the military's integration success generally appears more suspect when analysis is expanded to include gender integration. While great strides have been made to include women, formal polices such as the combat exclusion and the existence of informal behavioral norms tied to masculinity remain barriers to true equality. Shifting from a discussion of the lesser-included to the totally excluded, Part II.B questions whether, given the military's treatment of gays and lesbians, any positive integration narrative(s) should be regarded as credible. This discussion is concluded in Part II.C, where it is argued that the success reported in the integration narratives of race, and to a lesser extent gender, may be waning largely because of the various Armed Forces gravitating toward color- and gender-blind approaches to promotion and retention. These approaches came in to prominent use as a result of a set of reverse discrimination cases. Adopting these approaches not only undermines the success story, but also contributes to the conditions that create the need for extra identity work for service members inhabiting multiple identity categories.
Part III seeks to explicate with greater nuance the dangers of accepting the prevailing positive narrative for the current state of military identity inclusion. This Part argues that greater focus should be placed on rooting out behavioral barriers to promotion and retention, rather than measuring success based merely on entry statistics. In Part III.A, given the military's current embrace of gender- and race-neutrality, theories of unconscious bias and identity performance are advanced to explore the individual challenges that face women and minority service members. In particular, it is argued that in the absence of meaningful race- and gender-conscious regulations, people of color and women face difficulties in managing identity against the backdrop of the unspoken requirements of the military's unique work culture. Using primarily the work of legal scholars Kenji Yoshino, Devon Carbado, and Mitu Gulati, it is argued that minorities are largely reduced to "covering" (downplaying) (19) and "working" (20) their identities in order to limit the effects of white and male social norms and the greater challenges unique to the military. In theory, to the extent these assimilative plays undermine negative race and gender stereotypes, they should lead to some measure of success. Part III.A asserts, however, that within the military, in the absence of a true commitment to assessing the cost of difference, assimilative conduct is not an effective solution for overcoming debilitated status identity. This is especially true for those considered multiply deviant, and for whom the amount of difference that must be mitigated creates a greater burden. For all, however, in an environment that lawfully limits opportunities based on gender and sexuality, it is doubtful that behavioral norms will be confronted, where they merely reinforce stereotypical understandings of identity.
Part III.B shifts from considering individual to institutional conduct and queries whether the previous story of inclusiveness based upon race continues to be persuasive in light of recent data detailing minority promotion opportunities. Unlike studies that focus on the current membership numbers for women and people of color within the military to measure integration success, (21) the focus here is placed on selected promotion statistics. For racial minorities and women, these statistics reveal a sporadically troubling landscape with regard to opportunities for success. While the data cannot be used to make broad empirical claims, they do help to expose a problem that was instrumental to the genesis of this Article: the problem that for certain persons for whom there are multiple bases to discriminate, statistics are not maintained. For instance, that the promotion board statistics considered do not present one with an opportunity even to assess the specific success of women of color is symptomatic of a type of problem that is referenced in the title of this Article. The phrase, "But Some of [Them] Are Brave" is a reference to a well-known Black Women's Studies text, which emphasizes how the specific issues of women of color are often obscured by greater focus being placed on men of color and white women. (22) Moreover, while the data do not definitively prove the utter falseness of military integration success, they do suggest--in the least--that it may be premature to shift institutional policies toward colorblindness. (23)
Finally, Part IV discusses a return to regulations and guidance that more concretely consider the ways race and gender factor into promotions and retention. It locates the potential availability of such considerations in the case law considering military equal opportunity initiatives, the deference the courts historically have afforded to the military, and the Supreme Court's specific endorsement of the diversity rationale in education as a means to keep the military integrated. A return to identity-consciousness is needed because currently it is individuals who largely bear the burden of mitigating the consequences of difference within the military. A more progressive military--one committed to substantive equality and integration premised upon success rather than access--should, however, also bear a portion of this burden. Ultimately, this Article concludes that an organization that turns a blind eye to these types of constraints and demands on identity must either give up its claims with regard to the success of its program of integration or move toward policies that disavow the muted weight of difference that still exists for some within the ranks.
I. RACIAL INCLUSION AND THE FORMATION OF AN "INTEGRATION SUCCESS STORY"
As recently as 2003, in the U.S. Supreme Court's decision in Grutter v. Bollinger, (24) we have seen national recognition extended to the military's successful integration of its forces with regard to race. (25) In fact, the Court's decision to allow public colleges and universities to continue to consider racial diversity in admissions was based in part on the vital role such admissions play in producing a pool from which to draw military officer candidates. In an amicus brief, military leaders claimed that maintaining a racially diverse officer corps was not merely preferred but vital to national security. (26) The Grutter case reveals the ultimate power of law--and of society accepting the military as an integration success. As a precursor to analyzing the dangers of accepting the narrative as accurate, this Part of the Article considers how this success narrative emerged. It does so by looking at the history of military race relations and marking the military's transformation from an organization that practiced explicit racial exclusion to one understood to be a model for racial inclusiveness.
While the government's motives may not have been pure, (27) from the time President Truman issued Executive Order 9981, (28) the decision to open the military to African Americans has had far reaching implications within society. (29) Still, the road toward solidifying the racial integration mandated in the Executive Order was long and winding. In addition to requiring integration, the Order created the President's Committee on Equality of Treatment and Opportunity (the Fahy Committee), (30) which worked to encourage full integration, even as the President informally agreed to allow Service Secretaries to continue to limit enlistments by race. (31) The Fahy Committee was followed in 1962 by the President's Committee on Equal Opportunity in the Armed Forces (the Gesell Committee). (32) It was the circumstances described in the Gesell Committee report, (33) along with a history of race and gender integration problems, which created an environment in need of race-conscious policies.
According to military historian Charles Moskos, racial tensions came to a head during the Vietnam Era:
Throughout the Vietnam War race relations were terrible. By the early 1970s race riots were rampant, an outcome of both perceived and real discrimination against [B]lacks in the military along with spillover from the racial and political turmoil in society at large. Racial conflict did not disappear with the all-volunteer Army, instituted in 1973. Fights between black and white soldiers were endemic in the 1970s, an era that is now called "the time of troubles." (34)
Following the unrest in this era, the military made a significant commitment to fixing its race problem. (35) It did so by creating race-conscious structural mechanisms to ensure equality. (36) Race, then, became a consideration for admitting officers into the service academies and Reserve Officer Training Corps (ROTC) programs. (37) Through the creation of the Defense Equal Opportunity Management Institute (DEOMI)--the Defense Department's institute for equal opportunity training and data collection--the forces began to track the conditions for minorities in myriad contexts, including promotions. (38) They issued directives that not only required the assessment of equal opportunity at critical junctures, (39) but facilitated the development of tools to ensure equal opportunity in other areas, such as assignments. (40) These policies were so effective that by the time of the first Persian Gulf War, there were no significant racial incidents reported during the conflict. (41) This is not to say that anyone believed the military services had entirely eliminated segregation and discrimination, (42) but that unlike other institutions, they had placed a great deal of effort behind meaningful integration. This has resulted in military scholars referring to the military--the Army in particular--as an organization that: (1) "contradicts the prevailing race paradigm" (43); (2) is "unmatched in its level of racial integration" (44); and (3) stands out "even among governmental agencies, as an organization in which [B]lacks often do better than their white counterparts." (45) Professor Kenneth Karst restates what is now a common belief in the following manner: "No one today claims the services are free from the effects of racism, but on this score it is hard to find any other institution in American society that has done better." (46)
So strong was the belief in the military as a model for effective inclusion that in his speech encouraging the society to accept a mend to, rather than the end of, affirmative action within the federal government, President Clinton stated:
The model used by the military, the army in particular ... that model has been especially successful because it emphasizes education and training, ensuring that it has a wide pool of qualified candidates for every level of promotion. That approach has given us the most racially diverse and the best qualified military in history. There are more opportunities for women and minorities there than ever before. (47)
Ultimately, it was the military's reputation for success at integration through race-conscious means that affected the Court's decision in Grutter. (48) In that case, the consolidated amicus brief filed by general officers, senators, and former secretaries of defense, through historical analysis and data on inclusion, emphatically proclaimed the truth of the military integration success narrative. (49) Moreover, the amici sought the Court's assistance in preserving the diverse officer candidate pool necessary to maintain that success. The military's concern did, in fact, become a central factor in the Court maintaining diversity as a rationale capable of supporting the consideration of race in post-secondary admissions. Specifically, the Court relied heavily upon the consolidated amicus brief and indicated: "What is more, high-ranking retired officers and civilian leaders of the United States military assert that, '[b]ased on [their] decades of experience,' a 'highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security." (50) The Court went on to adopt the military's claims that it could not produce a qualified and diverse officer corps without using "limited race-conscious recruiting and admissions policies" for the service academies and collegiate ROTC programs. (51) Significantly, the Court agreed with the conclusion reached in the amicus brief that "'the country's other most selective institutions must remain both diverse and selective." (52) Essentially, the Court used the brief to suggest that integration fuels the success of the organization. Given that this success can only be maintained through a race-conscious accession process, then it must be okay to also use some version of this type of selection policy for university admissions.
II. INTERROGATING INTEGRATION SUCCESS NARRATIVES
Despite the public's embrace of the military as a model for integration success, there remain serious flaws within the model. While, on the one hand, the Armed Forces have worked hard to create and maintain diversity within their ranks, they have, on the other hand, explicitly and unabashedly limited the quality of that service for some members (women) and completely excluded others (gays and lesbians) from open service. Even if diversity is generally viewed as imperative to the Services, this Part argues that the disparate treatment afforded across identity groups creates questions about the extent of integration success and whether the narrative can be maintained. The limits of this success story are first tested by looking at how the inclusion of Blacks failed to spur the successful integration of other minority groups. Based on the improved opportunities now available to women in the Armed Forces, Part II.A argues that some support exists for claiming that, with regard to gender, the military may trumpet another integration success narrative. The strength of this claim is challenged, however, by exploring the key policies that operate as longstanding barriers to the equal participation of women--limits on combat assignments. In Part II.B, the viability of integration success narratives is challenged by exploring the effects of the continued exclusion of gays and lesbians from openly serving. Part II.C will explicate how the success narrative has also been undermined due to policy changes during the Clinton administration that mandated a move toward colorblindness in officer promotions. These policy changes were precipitated by attacks on affirmative action that came through reverse-discrimination lawsuits brought both outside of, (53) and from within, (54) the military. Ultimately, these lawsuits resulted in guidance that provided extremely watered-down versions of equal opportunity statements to military promotion boards. As opposed to previous statements, the current statements substantially prevent the military from considering its history of race and gender discrimination in promotions and assignments. (55)
A. Gender Integration: A Success Story?
While the primary purpose of this Article is to interrogate the strength of the military's racial integration success story, some attention must also be paid to gender, given that later analysis pertains to understanding the effects of overlapping systems of subordination on military members. Specifically, the claim is advanced that in the military too little attention is paid to the difficulties that face individuals marked by both race and gender differences. (56) As such, it is understood that to describe a gender story as separate from the story of race (or sexuality) is to participate somewhat in the very practice criticized herein. (57) With regard to that gender story, alone, much of the present emphasis is placed on the current numbers for women in the military, (58) the many opportunities available to some women of color, (59) and the improving picture with regard to the availability of combat billets for all women. (60) The history of integrating women into the military services, however, has not been so rosy. The story of gender integration has traveled along a similar but modified are of inclusion when compared to the story of race (61)--or, as one commenter has opined: "By contrast, equal opportunity for women is also a stated principle, but the role of women continues to be a rolling source of contention." (62)
Due to personnel shortages related to the exigencies of war, women were first allowed to enter the Armed Forces during World War II, as members of the Women's Army Auxiliary Corps (WAAC), which was later transformed into the Women's Army Corps (WAC). (63) The Navy followed in short order, creating the Women Accepted for Voluntary Emergency Service (WAVES), (64) and the Air Force formed Women in the Air Force (WAF). Even after these initially segregated organizations were abandoned pursuant to the installation of a formal policy of full integration of all of the Services, (65) women faced obstacles to military service. For example, until the late 1960s, women constituted only one percent of the military, (66) and legal challenges had to be asserted to achieve equal benefits. (67) Even as women's numbers within the forces began to improve throughout the next decade, (68) at least two types of challenges to full integration remained that will discussed in this Article: (1) that women of color--and African Americans in particular--have faced and continue to confront additional obstacles related to race; (69) and (2) that the story of gender integration cannot be argued as a complete success, due to the military's continued policy barring the assignment of women to combat units. (70) As the race and gender intersection matters most specifically relate to constraints on identity performance, they will be discussed in Part III. This second issue, of course, finds part of its justification in norms related to the role of women within society and military norms related to masculinity. (71)
While a 1998 GAO report indicates that there have been increases in opportunities, women are still excluded from direct ground combat. (72) The breadth of the combat exclusion has, however, been waning, with the prohibitions on women serving on combat vessels and most combat aircraft being lifted in the early nineties. (73) Also, the DoD-wide "no-direct-ground-combat rule" was revised in 1994, after Operation Desert Storm. The rule was rewritten to only exclude women from "assignments to units below the brigade level whose primary mission is direct ground combat." (74) The policy also permitted services to close positions to women for units physically collocated with direct ground combat units. Direct ground combat is further defined as engaging "an enemy on the ground with individual or crew served weapons, while being exposed to hostile fire and to a high probability of direct physical contact with the hostile force's personnel ... [that] takes place well forward on the battlefield while locating and closing with the enemy to defeat them by fire, maneuver, or shock effect" (75).
Even as opportunities for full integration for women within the military continue to improve, the combat exclusion stands as a policy which still sets some formal limits. While these limiting policies mark the official gap between the integration stories of gender and race, throughout the remainder of the Article, we will see other ways that gender--especially for women of color--continues to mark disparate outcomes in success.
B. Gays and Lesbians: The Effect of Exclusion on Integration Success Stories
To understand why it would be inappropriate to indiscriminately credit the military for its integration success, one need look no further than the ways in which the organization still blatantly tolerates some forms of identity-based discrimination. For as successful as Truman's declaration for racial equality has come to be perceived, another president failed miserably in his attempt to liberate gay and lesbian soldiers and sailors from their closeted lives. (76) On January 29, 1993, President Bill Clinton drafted a memo to the Secretary of Defense directing him to draft an Executive Order that would end discrimination in the military, "in a manner that is practical, realistic, and consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain." (77)
President Clinton's plan was, however, met with insurmountable opposition from civilians, the military, and Congress. He was forced to abandon his initial directive and settle for the compromise referred to as the "Don't Ask, Don't Tell, Don't Pursue" policy. The policy allows gays and lesbians to serve in the military so long as they do not identify themselves as gay or lesbian and abstain from intimate homosexual relationships. This compromise did not achieve the goal of protecting gay men and lesbians within the military. In fact, the Department of Defense still maintains a version of DoD Directive 1332.14, which once stated:
Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements demonstrate a propensity to engage in homosexual conduct seriously impairs the accomplishment of the military mission. The presence of such members adversely impacts the ability of the Military Services to maintain discipline, good order, and morale .... (78)
While the language of the above-quoted Directive has been revised, (79) similar language in federal statutes still provides the policy guidance supporting Department of Defense Regulations that exclude gays, lesbians, and bisexuals from service. (80) One way that the exclusion of gays, lesbians, and bisexuals from the military detracts from the military's integration success narrative is obvious: a group of individuals is being excluded based purely on its status identity. Separate from the choice to exclude on this basis, nothing about the policy is related to notions that these service members are incapable of performing. Certainly, recent data has been compiled to advance the claim that "Don't Ask, Don't Tell" is costly (81) and patently unfair (82) discrimination. Formally, the exclusion is maintained under the premises of ensuring combat effectiveness and unit cohesion, (83) and shifting public opinion supporting allowing gays to serve openly has had little effect on the policy. For example, a 1993 RAND study concluded that even though military members still have negative attitudes about the service of gays and lesbians, sexual orientation discrimination--like race discrimination--could be effectively eliminated by instituting a policy creating a conduct-based standard, which would acknowledge that sexual orientation is not germane to military service. (84) More recently, a 2004 Urban Institute study concluded that at least 60,000 gay persons were serving in the Armed Forces, (85) and a 2004 Gallup poll found that sixty-three percent of respondents favored allowing gay men and lesbians to serve openly. (86) While the official military policy remains that of excluding from serving all but "hidden" gay men and lesbians, recent data suggests that in these times of increased military demands due to the "War on Terrorism," the Services have been discharging fewer persons based on homosexuality. (87) Given that societal acceptance of gays and lesbians being allowed to serve openly is growing, and the RAND study conclusion that integration opposition could be overcome by regulating conduct, the military's opposition to open service seems hollow. It certainly appears to be out of step with the positive integration narrative with regard to race.
Apart from taking away from the integration success narrative because it involves exclusion based upon sexuality alone, the exclusion of gays and lesbians from the military also negatively affects the narrative by excluding an important part of the very groups it wishes to include: racial minorities, but specifically those who are gay, lesbian, or bisexual. This often unacknowledged overlap of race and sexual orientation identity markers has created a problem for those wishing to construct a comprehensive conversation about integration. For those who do not see this as a conversation about overlapping bases for subordination, emphasis is placed on the dissimilar nature of race and sexual orientation, which then explains their different integration trajectories. These critics, essentially, have concerns with sexual orientation integration of the military being viewed as directly analogous in some ways to race and gender integration. (88) The point here is not to extensively rehash the propriety of such analogies, (89) but to make the separate point that there are dangers in embracing as legitimate an integration narrative for an organization that privileges some marginalized communities while disadvantaging others. Doing so creates a world where the included, but marginal, are encouraged to participate in the ostracism of the fully excluded. For example, many officers of color chastised President Clinton's plan to integrate gays as an attempt to treat sexuality like race--categories they perceived to be irreconcilably distinct. This view was represented in the comments of the then African-American Chairman of his Joint Chiefs of Staff, who was heavily opposed to lifting the ban. In a letter to Congress, General Colin Powell stated:
Skin color is a benign,...
|
