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‘Discrimination’ and Discrimination

At the Isabella Stewart Gardner Museum in Boston, discrimination is out in the open — and it’s fine. When you arrive, the sign above the lobby counter indicates that anybody named “Isabella” may enter without charge. I’d never seen anything like it. I smiled.

This is simple discrimination. One group of people, selected by name, receives better treatment than everybody else, even though that characteristic is irrelevant; with all due respect, it is not as if your parents by calling you this or that conferred merit upon you or otherwise rendered you any more qualified to look at paintings than your peers. Yet none of us is likely to be much exercised about this privilege granted to the special few. So many people claim discrimination of some sort, we are compelled to distinguish the profound from the trivial. The Gardner’s gift to Isabellas belongs to a rare category of the delightful.

The namesake of the museum was just the free spirit to celebrate her sisters. She was a patron of the arts. She was born into wealth in 1840, and she married a man even richer. She spent her money well, supporting creative talent in many disciplines. She is said to have scandalised the Brahmin society of New England of her era by, as a woman, frequenting boxing matches, a disreputable pastime for spectators and participants alike. The institution she founded to display her collection is famous for another reason. It was the site one of the greatest heists in American history. In 1990, thieves made off with thirteen canvases valued in the hundreds of millions. The mystery has never been solved (a $10 million reward remains open).

Frank H. WuFrank H. Wu

In any event, I visited the Gardner after a conference in the city on law school admissions. The subject that day, a perennial, was how to achieve diversity in the profession. In 2003, Justice Sandra Day O’Connor had majority support on the Supreme Court for the proposition that the goal could be pursued. In dicta that is not binding, she set a “sunset” period though, and time is running out. Despite progress, there remains rampant prejudice whether blatant or subtle. To take seriously the question of why the Gardner’s joke can be allowed offers an understanding of why invidious discrimination — the type that is illegal, even immoral, thanks to the civil rights movement for Black equality — is essentially different.

We must discriminate among discriminations. Otherwise we miss the point.

Whether the trait is “immutable” turns out not to be especially important. Although a name can be changed albeit not casually, that isn’t the crux of the matter. Whether the people who benefit are a majority or a minority also does not seem to be dispositive. Throughout history, there have been favored majorities as well as favored minorities.

A name is, for most of us, our identity. Nobody lacks a name. The specific word that calls us out might be significant within our culture and it certainly is meaningful to our family. Studies show that some names generate an advantage. A “Black” name attracts attention that is negative.

Perhaps the compelling distinction, however, is that there is no community of persons named Isabella. One Isabella probably feels no kinship with another Isabella. Among children, an individual who shares a given name with classmate can even be irate that they are not unique. The Isabella of this museum was idiosyncratic.

The free admission offer is, on the scale of differential treatment, no big deal, to be colloquial. Those of us who pay for a ticket suffer no stigma for even a moment.

By contrast, chattel slavery and Jim Crow racial segregation were pervasive and enforced by violence, including whippings, lynching and rape, dispensed casually and through the apparatus of the state. The inability to drink from a water fountain is symbolic of much more. That specific humiliation belongs to a burden of mistreatment as second-class on a constant basis, from denial of employment to redlining out of neighborhoods to deprivation of the vote which could change the situation. You could not avoid the effects or the implications, not if you were on the wrong side of the line.

However, there have always been, and there is a a trend promoting it now, those cases of discrimination that are not appropriate, verging on the outrageous. They should be dismissed, because even if the allegations are true, they amount to nothing that ought of concern. A handful of persons, for example, have achieved celebrity on the internet by insisting that they are victims, because their bigotry was documented and exposed, leading to loss of a job or general ostracism. They deserve no sympathy and they would extend none to the objects of their contempt, for they are being judged by the content of their character, not the color of their skin. They are being held accountable for actions. That is not the same as bias.

Thus discrimination should not be discussed in the abstract. There is discrimination, and then there is discrimination. We can, should, and must distinguish between the discrimination that is proper (not tolerating people promoting hatred), discrimination that is permissible (the Gardner giving a pass to the Isabellas in the crowd), and discrimination that violates our ideals of a diverse democracy (racism).

Real discrimination is concrete. It is wrong, because it is harmful.

Frank H. Wu is the William L. Prosser Distinguished Professor at the University of California Hastings College of the Law. You can follow him on Twitter @Frankhwu

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