THE ENVELOPE IN MY MAILBOX, lettered in delicate calligraphy, was a surprise. A decade had passed since my college friend and I had been close. Our communications in recent years had mostly taken the form of brief messages on social media. Still, I’ve learned that people do funny things when they’re getting married. I marked off “will attend” on the little card and found myself a date and a dress.
It was a beautiful ceremony and reception; indeed, with only sixty people or so in attendance, I was both surprised and honored to be included at a relatively intimate event. Late in the day—after we’d heard toasts, after we’d eaten cake, after she’d downed several glasses of champagne—my friend threw her arms around me. “I am so glad that you could come tonight,” she said, glowing with happiness. And then: “I mean, if you hadn’t been here”—she lowered her voice a little and gestured around the room with a self-deprecating laugh—“everyone here would have been white.” And then she waved the photographer over to take a picture of us together. A few days later she posted it on Facebook.
I have a copy of that picture. We’re smiling like any two longtime friends at a celebration. But the photo also captures a moment when something changed. At the time, I didn’t tell my friend that I found her comment off-putting. I couldn’t bring myself to cast the slightest shadow on her wedding day. At the same time, I was no longer nearly so surprised, nor nearly so honored, to have been included in the guest list. I realized that I was not at the wedding solely in my capacity as an old friend. I realized that my friend valued my presence for other reasons. I realized that I was part of the color scheme, just like the bridesmaids’ dresses and the flowers on the tables. I realized that when my friend thought of me, she saw a particular kind of opportunity—and she capitalized on it.
The drive back to my hotel that night marked the moment that I first named identity capitalism to myself. I had noticed this sort of behavior before: the way someone accused of sexism would immediately talk about his devotion to his daughters, or the way a college’s website inevitably features a lot of photos of people of color, or the way a company sued for sex discrimination would point to its female executives. But that night was the first time that I saw these disconnected observations as pieces of a puzzle that, when put together, formed a larger picture.
When I looked at the big picture, I saw people of one identity group trying to benefit from the identity of another group. White people trying to benefit from people of color. Men trying to benefit from women. The beneficiaries were generally the ingroup—the group that controlled power and resources.1 And the source of the benefit was always the outgroup—the group, often a numerical minority, without access to the ingroup’s power and resources.
Ingroup members already get a lot of benefit from their own identities. A brief in the famous Supreme Court case Plessy v. Ferguson, which upheld state-sanctioned racial segregation, argued that whiteness was “the most valuable sort of property.”2 Today, the benefits of whiteness remain. White people are less likely to be the victims of unjustified force by police officers. They are treated better at places of business and receive better prices while doing business. People with white-identified names receive better mentorship in school and more job opportunities after school. Society perceives white people as more intelligent, more competent, more reliable, and more attractive.
Whiteness provides countless advantages, and, perhaps unsurprisingly, it turns out that one is the opportunity to benefit from nonwhite people. Having a nonwhite person around can, for example, enhance a white person’s social status. Many white people want to seem cosmopolitan and most very much want to avoid seeming racist. Having a nonwhite friend is one solution. Although I doubt she spelled it out to herself quite so explicitly—at least not until after the champagne—I am sure this is at least part of the reason my long-ago friend wanted me at her wedding.
This behavior isn’t limited to race. It might also extend to gender, sexual orientation, disability status, or other identity categories. In each case, the identity ingroup—men, straight people, the non-disabled—can benefit in certain ways from those outside their identity group, who are often members of historically disempowered groups. These benefits can take many forms: economic, social, political, or even simply psychological. Sometimes an ingroup member wants to achieve social status, like my friend at her wedding. Other times the ingroup member wants to refute a claim of bigotry: “I can’t be racist (or sexist, or homophobic) if I have a friend who is Latino (or a woman, or gay).”
And the effort to benefit from outgroups is not limited to individual behavior. Institutions controlled by an ingroup also benefit from individuals not part of the ingroup. Colleges and universities enhance their appeal to prospective students by featuring members of outgroups in their promotional materials. Businesses hoping to attract clients or customers showcase outgroup employees on their websites or outgroup models in their pitches. Politicians attempting to broaden their appeal seek outgroup surrogates or feature outgroup members in their advertisements.
These efforts by ingroup members to benefit from outgroup members are examples of what I call identity capitalism, and ingroup members who profit from outgroup identity are identity capitalists. This book takes a hard look at identity capitalists. It examines the motivations and tracks the consequences of identity capitalism: for identity capitalists themselves, for other ingroup members, for members of outgroups, for institutions, and for society as a whole.
Identity capitalists are everywhere. Some are ordinary people going about their daily lives. Others are famous politicians, entertainers, CEOs, and public intellectuals. One prominent identity capitalist is Donald Trump, the forty-fifth president of the United States. Trump is a consummate ingroup member: a heterosexual white man born into great wealth and social status. Even among politicians—many of whom are notable identity capitalists—Trump’s behavior stands out. In 2015, then-presidential candidate Trump addressed a black man in the audience by saying, “Look at my African-American over here.” He then told a story designed to demonstrate that he had substantial support among black people. His message was clear: black people support me, check it out, there’s even one right here at my rally. Yet Trump’s disapproval ratings among black people typically hover in the 80 percent range, and only 6 percent of black voters cast a ballot for Trump in the 2016 presidential election.3 This disapproval reflects Trump’s statements and policies as president. On issues ranging from his fondness for Confederate monuments, to his disapproval of black football players kneeling to protest police violence, to his insistence that white supremacists in Charlottesville are “very fine people,” his administration has offered virtually no concrete support for issues important to a large percentage of black people.
Lest anyone think that identity capitalism is reserved for right-wing politicians, I give you Bernie Sanders, independent member of Congress from Vermont for nearly three decades and runner up in the 2016 Democratic presidential primary. Sanders has trumpeted his civil-rights-era affiliations: he (and two hundred and fifty thousand other people) participated the 1963 March on Washington, where Martin Luther King Jr. gave his “I Have a Dream” speech; later, Sanders was arrested during a demonstration against public school segregation in Chicago. By emphasizing these affiliations repeatedly, Sanders’ message is clear: I’m with the black people. Yet Sanders has accomplished little of racial substance in the intervening fifty years leading up to the 2016 presidential contest, thirty-five of which he spent in elected office. As a senator, he sponsored only three bills that were signed into law, two of which were about naming post offices. He appears acutely uncomfortable when the topic of race arises, usually turning the conversation back to economic, rather than explicitly racial, justice. In a typical pivot, he cited Martin Luther King Jr.: “We have got to look at the candidates . . . not by the color of their skin, not by their sexual orientation or their gender and not by their age. I mean, I think we have got to try to move us toward a nondiscriminatory society, which looks at people based on their abilities.”4 In polls, a substantial majority of black people are skeptical of Sanders, and that skepticism emerges in traditional and social media. During one rally, the hashtag #BernieSoBlack trended, including sarcastic comments such as “#BernieSoBlack he wrote MLK’s ‘I have a dream’ speech,” “#BernieSoBlack He founded Wakanda,” and “#BernieSoBlack that if elected, he will be our first black president.” Bernie’s attempt to capitalize on his civil rights affiliations from half a century ago does not equate to tangible racial progress now. And racial skepticism of Sanders emerged throughout the 2016 presidential primary: Sanders won only 14 percent of the black vote in South Carolina, 14 percent in Georgia, 11 percent in Mississippi, and a pitiful 6 percent in Alabama.5
Like Trump and Sanders, identity capitalists are doing nothing of substance by showcasing their affiliations with members of racial outgroups. A superficial affiliation with a member of an outgroup means nothing on its own. Strategically taking a photo with a person of color to post on social media doesn’t mean you have a deep and honest friendship with them that transcends racial barriers. Casting a person of color for a few speaking lines in an otherwise all-white sitcom doesn’t signify real progress toward racial equality in the entertainment industry. And hiring a woman at an all-male startup is not in itself a noteworthy contribution to gender equality. But identity capitalists act like these superficial gestures ought to earn them all the credit in the world.
Really, though, what’s so wrong with identity capitalism? Occasionally interacting with people with something other than true, pure affection or appreciation is just part of life. Everyone has an identity. Don’t we inherently gain value from one another’s identities as part of our relationships with them? One could argue that outgroup members are simply laboring under the same rules as all of us are—just, in some cases, for different reasons.
I disagree. Identity capitalism harms both individual members of outgroups and society as a whole in ways significant and serious. Outgroups suffer under the pressure to be who the ingroup wants them to be. A company may wish to hire more women, but only those women who dress in conventionally feminine ways, wear makeup, smile tolerantly at sexist jokes, and don’t mind organizing the annual holiday party in their free time. Women who don’t want to do those things—or perhaps can’t do those things—face an unattractive choice: either forfeit professional and personal opportunities, or else set aside the way they would prefer to act and perform the way the company wants them to perform. Allowing ingroups to set the agenda for how outgroup members should act is deeply harmful to the outgroup.
Identity capitalism also harms society as a whole. At a time when America is deeply divided, identity capitalism fuels racial resentment. Nobody wants to feel as though someone is their friend only for the purpose of posting photos on social media or dabbling in an unfamiliar culture. Nobody wants to feel as though a school admitted them or a company hired them purely to show off their identity. When such incidents are common, outgroup members view even sincere expressions of appreciation as dubious. Identity capitalism stands in the way of deeper and more authentic relationships among members of different groups.
Perpetrating or tolerating identity capitalism gives the impression that everything is fine when it’s not, and that all of us are treated equally when we’re not. Identity capitalism distracts from and displaces real substantive reform. This leads to misconceptions: more than half of white Americans believe that discrimination against them is as big a problem as discrimination against any other race, notwithstanding that a mountain of social science evidence begs to differ.6 Identity capitalism promotes the dangerous myth that black people and other outgroups are getting all the advantages while white people and other ingroups are the real victims. Worse, to embrace identity capitalism uncritically is to endorse fake diversity at the expense of real progress. Real progress would give outgroups substantive power in arenas ranging from home to school to work to politics to business to sports to entertainment. Identity capitalism just approximates the appearance of progress.
Identity capitalism is not about promoting tolerance, diversity, inclusion, or equality. It’s about self-interest and power. Self-interest, because individuals and institutions use identity capitalism to make themselves look good. Power, because in order to attempt identity capitalism in the first place, an individual or an institution has to belong to an ingroup in some way.7 Identity capitalism is an effort to gain the social status associated with diversity without doing any of the difficult work to make substantive racial progress a reality.
What about the targets of identity capitalism? Although identity capitalism is driven by ingroups, members of outgroups are not necessarily oblivious or involuntary participants. Some outgroup members are conscripted into the process of identity capitalism without their consent, or in some instances, without even their knowledge. The black man Trump called out at his rally, Gregory Cheadle, later told reporters that he was not a Trump supporter and that it was “surreal” to be addressed by Trump. While Trump tried to use Cheadle’s identity to insinuate that his campaign had support among black people, Cheadle hadn’t approved of the message in advance: it was an identity capitalism stealth attack.
But not every target of identity capitalism is as surprised as Cheadle. Media personalities Diamond and Silk—legally named Lynnette Hardaway and Rochelle Richardson—are self-described “biological sisters” who have made a career out of being black women who are willing to vouch for the Republican Party and, more specifically, for Donald Trump. The duo campaigned for Trump in several states, were pulled onstage by him in Raleigh to (in his words) “do a little routine” that echoed his talking points, and during his presidency have remained frequent guests on Fox News and other conservative media.8 They started a “Ditch and Switch” initiative to encourage people to leave the Democratic Party and register as Republicans. They were featured in a documentary called Dummycrats, which disparaged the Democratic Party. They characterize themselves as “President Trump’s most Outspoken and Loyal Supporters.”
Diamond and Silk are what I call identity entrepreneurs. Rather than unknowingly or passively getting pulled into identity capitalism, the sisters actively leveraged their identity as black women and used it to their advantage. They made their race and gender salient to Trump, the Republican Party, and the public at large. Unlike many black women in politics or entertainment who tailor their behavior to mainstream cultural norms driven by white men, Diamond and Silk unabashedly embody stereotypes about black women to a level that many black people see as caricature. Black activist Bree Newsome has called them “a modern day minstrel show.”9 The two use traditionally black dialect and mannerisms to spout Trump talking points. They embody the sassy black woman that many Trump supporters want to befriend to prove they aren’t racist, with the crucial distinction that Diamond and Silk also say things that Trump supporters want to hear. After 94 percent of black women voters cast ballots against Donald Trump,10 Diamond and Silk are a rare commodity, and as entrepreneurs they know that this inflates their value.
Diamond and Silk have profited from their identity entrepreneurship. Riding the wave of Trump’s success, they went from obscure vloggers to national fame almost overnight, and they run a lucrative business ranging from their various media activities to the merchandise they sell on their website. (Sample item: coffee mug bearing the slogan “Trump’s Yo President,” $25.) They went on a speaking tour that offered fans the chance to see them live for $50 a ticket, or $150 for VIP access including a reception and photo. They have over a million Twitter followers and more than two hundred thousand YouTube subscribers.
Diamond and Silk’s efforts demonstrate both the benefits and limits of identity entrepreneurship. For an entrepreneur to leverage her identity successfully, her identity must be visible to the ingroup yet must also take a form of which the ingroup approves. Diamond and Silk are successful identity entrepreneurs precisely because their appearance and demeanor are both unmistakably black and entirely unthreatening to members of the ingroup. They offer an opportunity for Republicans, and particularly Trump and his supporters, to defend their political party against accusations of racism and misogyny—without actually doing the hard work of examining whether their party or its leaders say racist and misogynistic things.
Diamond, Silk, and other identity entrepreneurs play a high-stakes game. Their willing participation in identity capitalism can yield considerable social and economic advantages. But they also run the risk that their value to the ingroup will expire, and they limit what they can say and do while still accessing these advantages. If Diamond and Silk suddenly announced their vehement support for the Black Lives Matter movement, no doubt the many benefits bestowed by the Republican Party would be swiftly withdrawn. As political commentator Keith Boykin explains, “If these two women, the way they speak, the way they talk and act and behave, were saying anything that was contradictory to Trump, the Trump supporters who defend them would be the first to attack them.”11
Identity entrepreneurship also has serious and far-ranging consequences beyond the individual entrepreneur. Commentators express concern about the way that Diamond and Silk reinforce stereotypes that are superficially harmless but in fact damaging to a group’s equal status in society. Newsome suggests that the duo’s performance is targeted at “white conservatives who want to believe Trump can’t be racist or they themselves can’t be racist because there are these two black women named Diamond and Silk who are constantly rooting for Trump.” In the long run, identity entrepreneurs may damage the interests of their own outgroup while yielding rewards for a few privileged outgroup members. Diamond and Silk are making money, visiting the Oval Office, and starring in their own movie. But meanwhile, according to the Institute for Women’s Policy Research, the median black woman in the United States makes $33,600—only 64.6 percent of the earnings of the median white man—and black women over age sixty-five are more than twice as likely to live in poverty as white women in the same age group.12 Identity entrepreneurship helps individual members of outgroups, but it rarely helps the outgroup as a whole.
Identity capitalism is intricately intertwined with law. Four decades ago, in 1978, the Supreme Court endorsed diversity as a rationale for affirmative action in Regents of the University of California v. Bakke.13 In his opinion, Justice Lewis Powell declared, “[T]he attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education.”14 Powell’s solo-authored opinion brought diversity mainstream. Thanks to him, diversity became the way to justify affirmative action, and this legal preoccupation with diversity both reflects and reinforces identity capitalism.
This is not to say that affirmative action jurisprudence invented identity capitalism. Identity capitalism has been part of American history from the beginning and, as a result of the incentives and pressures created by identity capitalism, so has identity entrepreneurship. Nor was the Bakke opinion’s reliance on diversity what brought diversity to the forefront of our culture. Indeed, “diversity” was part of our lexicon decades before Bakke.
Still, Bakke helped bring diversity to the legal foreground. As a result of the legal significance of diversity, the Supreme Court has come to rely increasingly on the importance of diversity and, therefore, so have litigators, policymakers, and the general public. Indeed, an entire industry has emerged around diversity. Today, “diversity consultant” is a profession. Companies have diversity officers. Schools have deans or entire offices dedicated to diversity. Publications, movies, political movements, sports teams, businesses, and other organizations are evaluated on whether they are diverse. They are praised when they are and criticized when they are not.
There is nothing wrong with diversity—indeed, quite the opposite. Research has shown that diversity improves outcomes in many areas of human endeavor.15 In a Credit Suisse study of two thousand global companies, those with at least one woman on their board had higher returns on equity, lower debt ratios, and better average growth. A Gallup survey found that hospitality businesses with significant diversity have 19 percent greater profits than those that are not diverse.16 Research has shown that diverse groups make better decisions and exhibit more creativity.17 In educational settings, researchers have found that racial diversity improves critical thinking, particularly among members of ingroups.18
But one result of the emphasis on diversity—or, at least, the appearance of diversity—is an enhanced incentive for identity capitalism. Ingroup individuals and institutions want the social and legal credit associated with diversity. So they engage in practices that seem to display diversity to get the credit, but without undertaking the work that makes the credit deserved. Again, identity capitalism is not new. But the explosion of the diversity industry has led to an unprecedented explosion in the incidence of identity capitalism.
Beyond affirmative action, other areas of the law reward identity capitalism. Laws prohibiting discrimination in schools, workplaces, and housing encourage those sued for discrimination to showcase members of outgroups as a defense. Other areas of the law, ranging from criminal justice to intellectual property to tort to contract, provide similar incentives. The American legal system is rife with identity capitalism.
As a lawyer and law professor, I find myself simultaneously fascinated and repelled by identity capitalism precisely because of the way it infects our legal system. But this explanation for my preoccupation with identity capitalism is incomplete. As a woman of color who grew up in a predominantly white suburb, who attended a predominantly white college and then a predominantly white law school, who pursued a profession that remains predominantly white and predominantly male, I have often found myself the target of identity capitalism. My photo has been on the websites. My friendship has been the defense against racism and sexism. My name has been added to conference lineups so that that the conference wouldn’t (as the organizers realize late in the game) end up being all white, or all male, because that would “look bad.” And, yes, my presence has been the bulwark against the dreaded all-white wedding. I hope to convince you that we are all participants in identity capitalism, willing or not, witting or not—me included.
My primary purpose in this book is not to vilify identity capitalists or people who participate in identity capitalism, although many do have troubling motivations and cause great harm. Rather, I’m hoping not only to describe a problem but also to propose some ways of solving it. I will explore how the law reflects and encourages identity capitalism. And I will explain several legal reforms that could remove incentives for identity capitalism and substitute incentives for real, substantive reform.
But the law alone cannot complete such reforms. We also need better policies. We need leadership from the public and private sectors. We need investment from corporations and universities. And we—as individuals, with our colleagues, with our friends—need to do the hard work of searching our own minds and hearts for the truth about the way we relate to one another and our reasons for doing so.
Mitigating the harmful effects of identity capitalism will not be easy. But it will be worth the struggle. Improving relationships among different identity groups in America requires a painfully honest reckoning with our current system of identity exploitation and a sincere, collective resolve to do better.
1. Throughout this book, I refer to ingroups to mean identity groups that disproportionately exercise power and control resources within society, and outgroups to mean identity groups that are not part of those groups. The social science concepts are actually a little more complicated: an “ingroup” is a group with which a person identifies, and an “outgroup” is one with which that person doesn’t. So ingroups and outgroups are relative: that is, a social outsider—say, a lesbian—would view other lesbians as an “ingroup” and heterosexual people as an “outgroup.” For purposes of the identity capitalist frame, though, I take the relevant person as a constant, and more specifically as an insider—someone who is white, male, straight, wealthy, and so forth. The “ingroup,” then, refers to people who share these identity characteristics. The outgroup is anyone who does not.
2. Plessy v. Ferguson, 163 U.S. 537 (1896); Brief for Plaintiff in Error at 9, Plessy (No. 210). Legal scholar Cheryl Harris has argued that whiteness is a form of property that confers both social status and more tangible forms of wealth on white people. See Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106 (1993): 1707–91.
3. Frank Newport, “Amazing Black Support for President Trump,” Gallup, November 20, 2019, https://news.gallup.com/opinion/polling-matters/268517/analyzing-black-support-president-trump.aspx.
4. Bob Kinzel and VPR News, “He’s in for 2020: Bernie Sanders Is Running for President Again,” VPR, February 19, 2019, https://www.vpr.org/post/hes-2020-bernie-sanders-running-president-again#stream/0.
5. Victoria M. Massie, “Why Did Bernie Sanders Do Better with Black Voters in the Midwest? We Asked 4 Experts,” March 21, 2016, https://www.vox.com/2016/3/21/11265114/black-voters-midwest-south-sanders.
6. Rebecca Aviel, “Rights as a Zero-Sum Game,” Arizona Law Review 61 (2019): 352–54.
7. People sometimes ask whether an outgroup member could also be an identity capitalist. For example, is a black woman an identity capitalist if she emphasizes her friendship with a white person to make herself seem more palatable to other white people? While the black woman is using identity in a way that benefits her, she is not an identity capitalist because power and resources are distributed unequally between white people and black people in society. That the black woman has to seek status by affiliating with a white person is a result of this inequality.
8. For Diamond and Silk novices, this “little routine” provides a condensed glimpse into a typical Diamond and Silk presentation and demonstrates Trump’s reaction to it. “Donald Trump Meets the Notorious Diamond and Silk, Self Described ‘Black Trump Supporters,’” Fox 10 Phoenix, December 4, 2015, https://www.youtube.com/watch?v=oIXGpScZ0Cg.
9. Quoted in Liam Stack, “Who Are Diamond and Silk? A Look at 2 Pro-Trump Social Media Stars,” New York Times, April 14, 2018, https://www.nytimes.com/2018/04/14/us/politics/diamond-silk-facebook.html.
10. Vanessa Williams, “Black Women—Hillary Clinton’s Most Reliable Voting Bloc—Look Beyond Defeat,” Washington Post, November 12, 2016, https://www.washingtonpost.com/politics/black-women—hillary-clintons-most-reliable-voting-bloc—look-beyond-defeat/2016/11/12/86d9182a-a845-11e6-ba59-a7d93165c6d4_story.html
11. Quoted in Stack, “Who Are Diamond and Silk?”
12. Asha DuMonthier et al., “The Status of Black Women in the United States,” Institute for Women’s Policy Research, 2017, https://iwpr.org/publications/status-black-women-united-states-report.
13. 438 U.S. 265 (1978).
14. Ibid., at 311–12. While only Justice Powell’s opinion concurring in the judgment adopted diversity as an acceptable rationale for affirmative action, his opinion was viewed as the controlling one because there was no majority.
15. David Wilkins, “From ‘Separate Is Inherently Unequal’ to ‘Diversity Is Good for Business’: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar,” Harvard Law Review 117 (2004).
16. Both Credit Suisse and Gallup are quoted in Rocío Lorenzo et al., “How Diverse Teams Boost Innovation,” Boston Consulting Group, January 23, 2018, https://www.bcg.com/en-us/publications/2018/how-diverse-leadership-teams-boost-innovation.aspx.
17. Katherine W. Phillips, “How Diversity Makes Us Smarter,” Scientific American, October 1, 2014, https://www.scientificamerican.com/article/how-diversity-makes-us-smarter.
18. Expert Witness Report of Patricia Y. Gurin at 12, Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) (No. 97–75321), 1998 WL 35140040, reprinted in 5 Michigan Journal of Race & Law 363 (1999) (appendices for the report are available at http://www.vpcomm.umich.edu/admissions/legal/expert/gurinapd.html).