Wiener Roast

Most of you know by now that The Nation published a defense of Bellesiles by Jon Wiener — actually, it was not so much a defense of Bellesiles as an attack on his critics — and that blogcitizens who have been following the issue found little of substance in it.

I am not going to discuss Bellesiles, but I do want to say something about The Nation and Wiener that, I think, will put his recent Bellesiles article in context — despite the fact that, as I have said here before, years ago I spent some time working at The Nation and used to know Wiener, with whom I share good mutual friends.

His recent Bellesiles article is not unique. In fact, it is merely the latest entry in what amounts to an irregular series at The Nation. Wiener is on call as something like its academic commissar, constantly policing college precincts to blast away at any deviationism that should appear. Of the articles in this ersatz series, I want to mention one and provide a more substantial comment on another, dealing with a controversial episode on which I am an involuntary expert since I was a participant.

D’Souza and Harvard

In his book, Illiberal Education (Free Press, 1991), Dinesh D’Souza discussed a nasty incident in 1988 that began when several students in Harvard history professor Stephan Thernstrom’s class on “The Peopling of America” went to authorities and accused him of “insensitivity” for assigning material from the journals of slaveholders and allegedly making comments about the black family that they found offensive. The controversy was picked up by the Harvard Crimson and ultimately embroiled the campus in an ugly debate about racism and academic freedom that, in its most significant concern, dealt with the response (or lack of it) from the Harvard administration, which was at best tepid in its defense of academic freedom. He refused to teach the course again.

In their respective reviews of D’Souza’s book, the highly regarded historians Eugene Genovese and C. Vann Woodward both prominently mentioned the controversy at Harvard. Here is Genovese:

The Harvard administration more or less upheld Thernstrom’s academic freedom; it did not fire him for having introduced pro- slavery and racist documents in his course on “The Peopling of America,” which he co-taught with the distinguished historian Bernard Bailyn. Significantly, the students who complained about Thernstrom’s “racial insensitivity” did not bother to confront him, as academic protocol, not to mention common courtesy, would require. Instead, they took their complaint to the administration and the press. In the event, the dean of the college, without mentioning Thernstrom by name, gravely announced his stern disapproval of “prejudice, harassment, and discrimination,” and warned professors to watch their mouths, lest they offend the sensibilities of their students. In effect, the Harvard administration acknowledged Thernstrom’s right to behave in a manner that embarrassed the university and ought to make him ashamed of himself. No doubt Bok and most of his deans disapprove of the excesses that accompany the struggle for diversity, sensitivity, and a radiant future for the peoples. They are merely doing their best to create an atmosphere in which professors who value their reputations and their perquisites learn to censor themselves. (“Heresy, Yes- Sensitivity, No,” The New Republic, April 15, 1991; available here.)

C. Vann Woodward, perhaps the most eminent historian of his generation, made, somewhat more genteelly as was his wont, essentially the same points:

When Professor Stephan Thernstrom described Jim Crow laws and their effects in a history lecture in February 1988 members of the Black Student Association denounced his “insensitivity” in the Harvard Crimson. They claimed he said that Jim Crow laws were “beneficial” and that “he read aloud from white plantation owners’ journals” that gave a “benevolent” picture of slavery. They took their complaints to the Committee on Race Relations set up by President Derek Bok to handle such matters. Instead of coming to Thernstrom’s defense, Dean of the College Fred Jewett issued an open letter the following week saying, without mentioning Thernstrom, that “recent events” compelled him to “speak out loudly and forcefully against all kinds or prejudice, harassment and discrimination” and stress the need for “warnings and clear messages about the inappropriateness and insensitivity of such behavior.” A month later the dean of the faculty assured Thernstrom that no disciplinary action would be taken against him, and praised his accusers as “judicious and fair.” It remained for President Bok to say Thernstrom had a right to teach as he wished, but that professors should avoid “possible insensitivity.” Thernstrom has stopped offering the course he taught with Bernard Bailyn. “It just isn’t worth it,” he said. (“Freedom and the Universities,” The New York Review of Books, July 18, 1991; here if you have an online subscription)

Now comes Commissar Wiener, who made a few phone calls, spoke with one or two of the students and some professor friends at Harvard who thought Thernstrom overreacted, and, in his characteristic voice, pronounces the whole affair essentially a pack of lies. His charges were extreme — “almost every element of the story D’Souza tells is erroneous … a morass of inaccuracies, exaggerations and falsehoods” — but nothing in Wiener’s long article substantially challenges the story as told by D’Souza, Genovese, and Woodward. The students’ motives were pure, he argues. “People don’t understand the term ‘racial insensitivity,'” one student told him. “It’s not a charge of bigotry or racism.” According to another professor, one of the complaining students did not have “an ideological reaction” to Thernstrom’s lectures; “it was a personal and emotional one.” One of the deans involved claimed that his warnings about racial insensitivity were not aimed specifically at Thernstrom.

In short, Wiener compiled a large number of quotes from people who were not sympathetic with Thernstrom, but nothing he unearthed challenges the basic story. Indeed, he unintentionally confirms it at one point by quoting another Harvard history professor who couldn’t understand what, in the absence of formal disciplinary action, all the fuss was about: “But nobody did anything to Steve except say he had been insensitive.” That’s rather like saying, “Oh, it wasn’t McCarthyite for the president and the dean to announce that Prof. X is a possible communist sympathizer. After all, they didn’t demand his resignation.” (Wiener, “What Happened at Harvard,” The Nation, 9/30/91)

At the same time as his Nation screed, Wiener sent a letter to the New York Review of Books criticizing the “distortion” of C. Vann Woodward’s “attack on multiculturalism” in his review of D’Souza. This letter did not mention Thernstrom, however. Here, Wiener referred only to Woodward’s criticism of campus speech codes, which Wiener defended under the “fighting words” doctrine that has been rejected by virtually (actually?) every court that has considered these codes. (“Exchange Over ‘Illiberal Education,'” New York Review of Books, 9/26/91; here) for online subscribers)

EEOC v. Sears, Roebuck and Co.

This episode will be much harder for me to discuss because I know much more about it and because it is hard (but necessary!) to resist the temptation to re-argue the whole case, but here goes. For about five years, roughly 1980-1985, I “practiced history” with Morgan Associates, Charles Morgan, Jr.’s small Washington, D.C., law firm that represented Sears in EEOC v. Sears, Roebuck and Co. 628 F. Supp. 1264 (1986), 839 F.2d 302 (1988).

This case is noteworthy for several reasons. At the time it was the largest sex discrimination case that had ever gone to trial. (After AT&T, Sears was the largest private employer of women in the country.) It was also, unusually, a purely statistical case. Despite a massive nationwide hunt for victims by the EEOC and its allies in NOW and other feminist organizations, none were found who survived the pre-trial process; thus no live victims/plaintiffs were involved in the trial. Finally, Sears was so large that determining the role of sex (and of sex roles) in the makeup of its workforce required nothing less than an analysis of the role of women and work in all of American society, which required the prominent involvement of historians.

The Sears defense not only had a historian on staff (me) and presented expert testimony from a women’s historian (my ex-wife, Rosalind Rosenberg, of Barnard College) but to the great consternation of many historians it actually incorporated a strong feminist perspective in its argument. The workforce at Sears in the years at issue, we argued, had grown up in an America where sex roles, for better or worse, were real. Thus the “underrepresentation” (compared to what?) of women in such jobs as installing home heating systems was not necessarily the result of discrimination by Sears. To argue that one would expect an equal number of women and men to be interested in and available for all types of jobs, as the EEOC did implicitly and sometimes explicitly, was to deny the reality of sex roles, and thus undermine the justification of affirmative action for women. (Sears’ voluntary affirmative action plan, incidentally, was so strong that the Nixon administration had regarded it as a quota system.) The percentage of women in various positions at Sears (selling hardware, clothes, appliances, air conditioners, etc.) closely tracked the percentage of women among sole proprietorships in those areas. Did women discriminate against themselves in choosing what businesses to run? Commission sales, in addition to requiring a certain amount of personal aggressiveness, required long hours and, often, access to a car. Was it necessarily Sears’s fault that fewer women than men were interested in the risks and stress of selling on commission, that many more women than men chose to work part-time, and that a far smaller percentage of women had drivers’ licenses and access to a car? The significance of these social facts would have been greatly attenuated if the EEOC lawyers had found and presented qualified women applicants who had been turned down, but they did not.

The idea of feminist history being used to defend a large corporation accused of sex discrimination simply sent many historians around the bend, or off the deep end. Thus perhaps the most noteworthy aspect of Sears — in any event, what is most relevant here — is that it ignited a fierce debate inside the history profession, and even outside, on the propriety of historians serving as expert witnesses on behalf of clients accused (let me repeat that: accused) of behavior most historians regarded with disgust. In fact, the behavior wasn’t even necessarily central; most historians regarded corporations with disgust, and more than a few told me that even if Sears was innocent of the specific charges it, as a large employer, wasn’t “really” innocent. It was hard to find a historian, especially anyone in women’s history, who did not regard testifying for a corporation accused of sex discrimination the same way Richard Nixon, had he only been in private practice, would have regarded being asked to defend Alger Hiss.

Any suspicion that I exaggerate can be alleviated by a quick look at an article by — you guessed it — Commissar Wiener in The Nation. In his telling, it was not so much a trial about Sears as “Women’s History on Trial” (The Nation, 9/7/1985). For example, Ellen DuBois (last heard from here organizing a petition by historians against President Bush’s Iraq policy) is quoted as saying “the EEOC lawsuit is part of a political battle…. [Rosenberg’s] argument is the essence of conservatism and must be read as an attack on working women and sexual equality….” Kathryn Kish Sklar, another prominent women’s historian, said “there was no way I [would] be a witness against the EEOC.” I have a file of many such comments, but Wiener was quoting these with approval.

Unlike in his later articles, however (perhaps because he was burned here), in putting women’s history on trial Wiener made an attempt to enter the debate and analyze and discuss the evidence. It was a mistake. The trial lasted ten months and the transcript alone ran to over 20,000 pages, although most of the relevant evidence was in voluminous archives of depositions, court filings, research memos — literally rooms full of data. Wiener’s article demonstrated scant familiarity with any of this, and the EEOC lawyers who probably vetted it (and his longer reply to critical letters that appeared 9/26/85) proved no more competent than they were at trial.

Since I promised not to retry the whole case, one (humorous) example of Wiener’s lack of familiarity with the record will have to suffice. I have mentioned that there were no live victim/plaintiffs presented by the EEOC, but there was one brief attempt. Here’s Wiener:

Two women who had been turned down did appear at the end of the trial. Sears picked three applications out of a pool of one hundred as examples of women who were not interested in selling on commission, and the EEOC managed to locate two of them. Each said she was indeed interested and showed she was qualified; one had considerable experience in commission sales.

As Rosalind pointed out in her Oct. 26 letter:

In the final weeks of the trial [the EEOC] presented two sales applicants to shore up its claim that there were women who were interested in selling on a commission basis who had been denied the opportunity. But the first applied for a full-time position at a store that had no full-time openings, and the second learned on the witness stand that two commission salespeople had been hired who had applied for the same job on the same day she did. One was a white woman and the other was a black woman.”

More significant, however, than Wiener’s many factual errors (Sears’ affirmative action program began voluntarily in 1968, not under duress in 1973; selling on commission did not guarantee more income; etc.) was the fact that he was incapable of telling the difference between facts and controverted assertions. Thus he reports as fact that from 1973 to 1980 “40 percent of those qualified for commission sales jobs were women” but “only 27 percent of those hired” were women. This was asserted by the EEOC; it was vigorously denied by Sears. The judge agreed with Sears. This is as good a spot as any for me to report that not only did Sears win the case, but the trial judge did something relatively rare. He said that Sears had actually proved itself innocent. On appeal the judgment was upheld by the Seventh Circuit.

As with his later articles in the same vein on Thernstrom and Bellesiles, Commissar Wiener’s Sears article is primarily ad hominem (ad wominem?) invective and innuendo about playing into the hands of the far right, etc. Wiener is a perfect modern example of the hoary tradition of “solidarity” — no enemies on the left; the enemy of my enemy is my friend, etc. Thus Thernstrom was wrong because his critics were black and besides, D’Souza was the darling of the neo-cons; Bellesiles’s critics are wrong because the NRA agrees with them and Lindgren “published an article using data gathered by the right-wing Federalist Society”; women’s history should not be judged by whether it persuasively marshals evidence and argument but by whether it helps “working women,” and arguments like ours in Sears “play into the hands of conservatives,” etc.

Wiener’s article waded into a debate that was raging — and that he helped to inflame — about the responsibility of historians engaged in public controversies. There are important questions here — What if good history has bad effects, or bad history good effects? — but Wiener didn’t ask them. His response to Rosalind’s testimony, and the response of those he encouraged, was a prototype — maybe the first real example — of what would shortly thereafter be labeled enforcing political correctness.

There is only one more item to discuss, but I have saved the best for last. You would think that an article purporting to deal with the use, or misuse, of history in a major trial would identify the major documents and testimony dealing with history and discuss them. Wiener does not. Indeed, he fails even to mention one of the two central documents at the heart of the debate over history, amounting to a breathtaking distortion of the record.

Sears thoroughly researched and prepared its “history defense,” and listed Rosalind Rosenberg as one of its experts well before the trial. In response, and somewhat belatedly, the EEOC signed up its own expert, the well-known women’s historian Alice Kessler-Harris. The official history documents, in their entirety, were the following:

1. An “Offer of Proof” written by Sears attorneys listing in short, summary form in numbered paragraphs the arguments Rosalind would make at trial.

2. A written “Rebuttal” to this Offer of Proof by Kessler-Harris.

3. A written “Rebuttal” to the Kessler-Harris document by Rosalind.

4. The actual oral trial testimony by both historians.

The two written “Rebuttals” thus comprise the entire history argument, but Wiener totally ignored Rosalind’s document, choosing to treat the short attorney-written “Offer of Proof” as though it contained everything she had to say. Of course it did not. It was akin to reviewing an abstract or summary or precis as though it were the whole book. This purposeful omission had one enormous benefit for Wiener, however. It allowed him to ignore one of the central elements of Rosalind’s “Rebuttal” document: the twelve single-spaced pages of contradictions between Kessler-Harris’s written testimony and what she had previously published in her articles and books.

Perhaps encouraged by Wiener’s precedent, when Signs (which claimed, and perhaps claims, to be the leading scholarly journal of women’s studies) decided to publish the primary documents in the Sears case so readers could judge the still-raging controversy for themselves, it too omitted Rosalind’s substantive contribution to the debate, even though we notified its editor months before publication that such an omission would make the resulting issue thoroughly misleading and uselessly incomplete. They did, and it is. (“Offer of Proof Concerning the Testimony of Rosalind Rosenberg” and “Written Testimony of Alice Kessler Harris” in Signs, Vol. 11 (Summer 1986), 757-779)

Anyone wishing to pursue this matter further should turn to an excellent article by Sanford Levinson and Thomas Haskell, “Academic Freedom and Expert Witnessing: Historians and the Sears Case,” 66 TEXAS LAW REVIEW 1629 (1988). Incidentally, Haskell, a careful, soft-spoken, mild-mannered, highly respected intellectual historian at Rice, sent an uncharacteristically sharp letter to The Nation (10/26/85) that began by stating

In what I hope was only a momentary rage for simplification, Professor Jon Wiener misled Nation readers about the Equal Employment Opportunity Commission’s case against Sears, Roebuck and Company, did a disservice to the history profession and was unfair to Professor Rosalind Rosenberg.

Wiener’s articles are revealing primary documents in the culture wars, but they contribute little of merit to the substantive disputes they attempt to address.

Finally …

And now I am going to indulge myself (why else have your own blog?), in part because, as I hope I’ve shown, Wiener’s recent article on Bellesiles is merely a reprise of his earlier one on Sears. When the Sears article first came out, and then especially after his response to Rosalind’s and Tom Haskell’s letters in a subsequent issue of The Nation, I very much wanted to reply. In fact, I wrote several replies. But because of a request from Sears’s lead attorney (and my friend) Chuck Morgan, I did not send them; we were still awaiting the court’s opinion. Some months later, after the opinion announcing Sears’ victory, it was too late, and was less important. It was time to “move on,” even though the personal and professional repercussions of the case were ongoing. But now I feel no such constraint. Here is what I wrote at the time but did not send, preserved on yellowing fan-fold output from a long dead dot matrix printer:

October 27, 1985

To the Editor:

Since I have been in sympathetic association with The Nation (I worked there), with Rosalind Rosenberg (we are no longer married), and with Chuck Morgan (I no longer work with him), I hope you will permit another comment on Jon Wiener’s hatchet-job on the use of history in the Sears case (Sept. 7, 1985).

At first I was going to let it pass; I worked on that case at Morgan Associates and did not feel at liberty to discuss it until the court renders its opinion. But Wiener’s response to Rosalind Rosenberg’s and Tom Haskell’s letters pointing out some (not all) of his factual errors and more serious distortions (October 26) underscores the fact that the responsibility of historians, not simply the guilt or innocence of Sears, is involved here, and that deserves comment now.

The EEOC’s position, parroted by Wiener, was that employer discrimination is the sole explanation for the employment patterns of women. Readers may be forgiven for thinking I exaggerate, but the government’s historian, Alice Kessler-Harris, submitted written testimony actually stating that “where opportunity has existed, women have never failed to take the job offered…. Failure to find women in so-called non-traditional jobs can thus only be interpreted as a consequence of employers’ discrimination.” Kessler-Harris further testified that responsibilities for family and children placed no greater burden on women than men workers, and that women’s own choices and interests have nothing to do with the jobs they take. In fact, she was so hostile to the idea that the system leaves women any room at all to choose that she insisted on placing the terms “choice” and “women’s interests” in quotes, and even went so far as to deny that women themselves choose their own major subjects in college or that women business owners choose the types of businesses they own. This argument, it should be clear, has nothing to do with scholarship in women’s history and everything to do with the curious political judgment that women’s interests depend on insisting that discrimination explains everything.

In what was perhaps his most serious transgression, Wiener suppressed compelling evidence that this debate is not over differing views of women’s history but over the politics and propriety of stating in public that women’s lives are governed by more than employer discrimination. As proof that there is a broad consensus on the historical issues themselves, Rosalind Rosenberg attached an appendix to her written testimony that gave extensive examples of clear, direct contradictions between what Alice Kessler-Harris testified to in the trial and what even she had written in her articles and books.

For example, Kessler-Harris the witness: “ideas about women’s traditional roles are neither deeply rooted in women’s psyche nor do they form a barrier that inhibits women’s workforce participation,” vs. Kessler-Harris the historian: “public policies which affirmed women’s home roles engendered a series of psychic self-images and behavior patterns that predetermined women’s inferior work force position.”

Regarding factors that may affect a wage-earning woman’s choice of job, such as childcare, housework, irregular hours, weekend work, commuting distance, etc., Kessler-Harris the witness stated that “in my opinion, those factors are not the reasons why women choose or do not choose jobs,” but Kesler-Harris the historian had written that, “still caught in the belief” that home and family came first, many women in the 1970s “chose work for the convenience of being close to home or for hours that suited children’s schedules.” There were twelve single-spaced pages of similar examples in this appendix.

The point that is relevant here is not so much these contradictions themselves, but that Wiener could presume to write an article about the use of history in the Sears case and not even mention them. This glaring and politically self-serving omission does not inspire confidence in his other judgments, or for that matter in the wisdom of The Nation’s apparent appointment of him as a roving proctor to police the practices of the historical profession. (See David Abraham article.)

To his credit, Wiener never really defends the EEOC/Kessler-Harris version of history. Instead, he quotes a few historians who are uncomfortable with history being used to defend anyone accused of discrimination and lamely asserts that he couldn’t find anyone who agreed with the Sears argument that discrimination doesn’t explain everything. Even here, however, he is not a reliable reporter. I know of at least one historian he spoke to who gave him permission to use her name but who was not mentioned in his article or reply. And Carl Degler, who was quoted in the article as not wanting history used to limit opportunities (who does?), wrote to me after reading the historical testimony (which had not been provided to him by Wiener) that “in the testimony [Rosalind Rosenberg] nails Alice Kessler-Harris very well. There is no doubt in my mind that women have indeed been constrained by family, social, and psychological influences in making choices about jobs” (I quote with his permission).

The debate, in short, is not over history, but the propriety of using history in defense of a charge of discrimination, which is not at all the same thing as defending discrimination — though many seem to have lost sight of the difference. Apparently, the usually significant distinction between government accusation and guilt flies out the window whenever discrimination is at issue, just as it traditionally evaporated for those on the other side of the political spectrum whenever the charge was subversion or disloyalty.

Indeed, this mentality, which regards any argument that women’s career choices are affected by more than discrimination as “an attack on working women” (as one of Wiener’s quotees put it), is reminiscent of the familiar view that anyone opposing the red scare was a communist sympathizer, or at any rate “objectively” serving the interests of communism. Thus, Wiener’s argument was not so much that Rosalind Rosenberg’s history was wrong as that it would “play into the hands of conservatives.” Where superpatriots of the past thought that HUAC and the FBI could do no wrong, and that opposing them was somehow subversive even if they did, many liberals and lefties today have a similarly uncritical veneration for another investigative agency of the state, the EEOC.

Some will regard my analogy to a McCarthy-like mentality as overdrawn. I wish it were, but the sad fact is that I know historians who agree with Rosalind’s testimony, who abhor, the dogmatism that is hardening the intellectual arteries on the other side of this argument, but who are forced to keep silent out of an all too reasonable fear that speaking out would cost them jobs, promotions, or professional acceptance. For Wiener and his friendly witnesses to fan the flames of this intimidation by branding any feminist who is willing to say in public what she writes in academic journals as an agent or dupe or fellow traveler of the far right and then to piously wonder why more candidates haven’t stepped forward to be burned is, at best, disingenuous.

Not only do Wiener and company judge scholarship by an exclusively political standard (is it good for the Jews/Palestinians/women/blacks/etc.), but the particular political standard they use is silly and self-defeating. A Sears loss would discourage other private employers from adopting voluntary affirmative action plans, and it would encourage the government and the women’s movement to continue concentrating exclusively on discrimination as the source of all evil. Indeed, the cruelest thing one could do with Alice Kessler-Harris’s testimony is to distribute it widely, especially to opponents of comparable worth and other structural changes in the workplace who will find there much support for their view that no such far-reaching changes are required.

It is ironic that so many feminists and their friends should feel the need to circle the wagons in defense of an orthodoxy so precarious that it cannot accommodate — indeed, regards as heretical — the common-sense, well-documented (and far more radical) proposition that the entire society and its values, not merely employer discrimination, reinforces traditional roles for women. But no more ironic than Wiener’s original polemic — with is message that scholars must cease their discussion and analysis upon a governmental accusation of discrimination — beginning on the same page of your September 7 issue as an editorial calling on readers to remember the “moral lessons of the blacklist.”

John S. Rosenberg

Say What? (15)

  1. anony-mouse October 25, 2002 at 10:14 pm | | Reply

    Came here via Instapundit and found a very nice read. Thanks.

  2. Jeff B. October 25, 2002 at 10:29 pm | | Reply

    Quite excellent, John. Here at the Johns Hopkins history department the Sears vs. EEOC case has come up at least twice in different courses as the exemplar of how dangerous it is to politicize history for short-term gain, and the deleterious effect of the distortions that can result. I wonder if you’ve read Peter Novick’s coverage of the case in his wonderful monograph on the role of “objectivity” in the American historical profession, That Noble Dream. Despite his stated intention in his preface not to take obvious sides in his discussions of the various historical controversies he covers, his sympathy for the courage of Professor Rosenberg shines through nonetheless.

    It’s quite fascinating to hear from one of the prime movers in a court case which has always been of particular interest and importance for those in our field. Thank you especially for sharing your unsent letter.

  3. Media Minder October 25, 2002 at 11:31 pm | | Reply

    Wow. Great piece. It once again illustrates why I no longer have much sympathy for left-wing politics.

  4. John Rosenberg October 26, 2002 at 1:03 am | | Reply

    Thanks, anon…, Jeff B., and MM. Jeff B. raised the question of the treatment of the Sears case in Peter Novick’s book, That Ignoble Dream (Cambridge, 1988). I replied to him in a long email, but then it occurred to me that since I’ve already gone public at such embarrassing length I may as well put the part of my email that discussed Novick here as well. Hope this doesn’t break the comment engine, or anyone’s patience:

    I don’t know Novick, but he’s clearly a bright guy. When I had an opinion on the book as a whole, I think it was that the book was very informative and hence useful, but that it was much better at describing the problem of objectivity than analyzing, much less resolving it or even developing a cogent position of his own about it. On those levels I don’t find it in the same league with Tom Haskell’s OBJECTIVITY IS NOT NEUTRALITY, which may be one of the best history-related books I’ve read. Novick’s treatment of the Sears case was better, certainly more even-handed, than just about everything else on it except the Levinson/ Haskell TEXAS LAW REVIEW article I cited. If anything, he tried too hard to be even-handed (his solution to the objectivity problem?), which led his efforts to say some nice things about Alilce sound a bit hollow and insincere.

    As would no doubt be the case with anyone who knows (more accurately, knew) a lot about something someone else writes about after looking at a few documents, and who moreover has a large investment in certain ways of looking at the issue, I have quibbles with some of Novick’s observations. He mentions “the undisputed statistical underrepresentation” of women in commission sales, without pausing over the red flag that the term “under- representation” raises. Compared to what? Absolute parity? Unpacking that issue was, in a way, what the whole case was about. Similarly, he says the heart of the Sears defense was that “one could only infer discrimination from the statistical pattern on the assumption that women were equally interersted in commission sales positions….” In the Sears defense, “interested” was only one part of a troika that also required “qualified” (or potentially qualified after training) and “available.” To complete this point, the Sears argument was that if you compare the numbers of women in commission sales at Sears to the relevant labor pool, which comprises the number of women in the vicinity of each store who were interested in, qualified for, and available for commission sales positions, women were not at all underrepresented. These, however, are trivial nits, especially compared with what others have written, and I suspect that even mentioning them makes me sound rather rabid on the subject.

    I do have a stronger and I think more substantial objection to a couple of other points Novick made. He writes that

    “The outcome was hardly in doubt, not because of the relative skill of the historical witnesses, and not even for reasons having much to do with whether Sears did in fact discriminate, but because the EEOC had so structured its argument that an historian much less adept than Rosenberg could have knocked it over. No historian could have done much more than Kessler-Harris to defend that argument against assault….. [Several pages later] The absence of complainants was … purely a function of the EEOC’s self-defeating strategy of sole reliance on statistical evidence.”

    Not so. This assumes — I believe incorrectly, and with no evidence that Novick cites or indeed could have cited to support it — that a better argument was available to the EEOC than the one it presented. It simply assumes, in short, something not that different from what he properly blasts Alice and others for assuming, that there just must have been evidence of Sears discrimination that could have been presented if the EEOC had been smarter. Now, I have an interest in the matter, but, just as paranoics on occasion have enemies, that interest doesn’t mean I’m wrong when I say there were no better arguments available to the EEOC than the statistical one they presented. They certainly could have presented that argument better, and, Novick notwithstanding, they certainly could have found other historians who would have been much more credible than Alice was and who would not have shot her/himself in the foot with all the dramatic contradictions. Don’t misunderstand: I’m not saying there was not one single case of sex discrimination that could have been turned up. Statistically speaking, there probably was. I’m saying the EEOC and friends looked hard and long and couldn’t find any, that in fact there weren’t enough to support anything like the kind of case the EEOC brought. Perhaps individuals with the EEOC’s help could have won a handful of cases; who knows. But that, or those hypothetical ones, weren’t a nationwide pattern and practice case. The evidence for that simply wasn’t there. In short, this passage represents Novick at his fortunately rare worst: trying to split the difference.

    Finally (and I have now gone on, as I did in the post, much longer than I anticipated), Novick writes:

    “But neither of the two opposing expert witnesses was “disinterested.” Neither had taken a “tell the truth though the heavens fall” posture. Both decided to testify based on their respective evaluations of the political consequences of the verdict. And their decisions to testify were also based on a priori beliefs about Sears’ guilt or innocence, which in neither instance seemed very well-grounded.”

    This is the only pasage in Novick’s treatment of Sears that I find not only wrong but offensive. First, and least significant, Rosalind’s belief in Sears’ innocence was the opposite of “a priori.” She agreed to testify only after immersing herself in prior pleadings and evidence, and only in the absence of complainants. I’m not sure what Novick intends to convey by putting “disinterested” in quotes (he doesn’t usually put “objectivity” in quotes), but I can say with absolute certainty that Rosalind had no opinion about Sears guilt or innocence when she was approached. I can say with equal certainty that she did not decide to testify because of any political cal- culation on the effect of a verdict, unless a belief that sound public policy is more likely to result from good history than bad history can be called a political calculation. Again, Novick strives too hard for a splitting-the-difference moral equivalence, and, revealingly, his arguments become strident and thin where, as here, he strays from an analysis of the available documentary or other evidence. There is no support in his notes, or in any evidence he could have cited, for his conclusions stated above. He seems to think that his own objectivity (appearance of objectivity?) depends on this sort of down the middle even-handedness, but in my opinion that commitment forces him to depart from his evidence.

  5. Carol Iannone October 26, 2002 at 9:26 am | | Reply

    I read with interest your discussion of Weiner and the Sears case. I find it strange that you mention Rosalind Rosenberg’s rebuttal testimony, which shows the contradiction between Kessler-Harris’s sworn testimony and her writings, criticize SIGNS for refusing to publish it, but don’t add that it was published by ACADEMIC QUESTIONS, “From the Witness Stand: Previously Unpublished Testimony in the Sex Discrimination Case Against Sears,” Winter 1987-88.

  6. Margaret October 26, 2002 at 12:27 pm | | Reply

    I will read Discriminations regularly from now on. Fabulous work.

  7. John Rosenberg October 26, 2002 at 4:24 pm | | Reply

    Margaret: Thanks! I look forward to seeing you pop up in Comments in the future.

    Carol: Thanks for bringing Academic Questions to our attention. I have a confession: by 1987 I had (with great difficulty, my friends would tell you) finally gotten Sears out of my mind and constant conversation. I did not follow whatever ongoing discussion there was. I don’t think I knew that Academic Questions had published Ros’s testimony that Signs infamously omitted. It’s possible that I did know and subsequently forgot. These days I’m often tempted to say my memory’s so good I can’t recall the last time I forgot anything…. Anyway, I’m delighted to learn, or re-learn, that AQ published the testimony, and I appreciate your telling (reminding?) me.

  8. Jesse Walker October 26, 2002 at 5:41 pm | | Reply

    Ah: Jon Wiener stories. There’s so many of them. When I was a student at Michigan, my colleagues at one of the campus radio stations were up in arms because he had conflated us with another station in one of his *Nation* articles, misreporting that we had aired racist jokes. In the years since then, I’ve learned that that’s the least of his journalistic sins.

    Anyway. Thanks for an illuminating post.

  9. Chris October 26, 2002 at 9:01 pm | | Reply

    Came over from Instapundit to read your very interesting material. Just one area of questions I’d like to pose, although the answer(s) may be obvious to those better-informed than I. Was Sears able to recover any of its legal costs after winning the case? Did anyone at the EEOC suffer any career damage as a result of the misguided taxpayer-funded effort against Sears? Did EEOC legal tactics change when they later went after Home Depot? And last but not least, did Clarence Thomas have any effect on this stuff when he was the director of EEOC? I’d appeciate any information or thoughts you have on any of these.

  10. John Rosenberg October 26, 2002 at 10:40 pm | | Reply

    Jesse: Welcome to Discriminations, and thanks for your comment. I’m a big fan both of your blog and your writing in Reason.

    Chris: I’m not the best person to answer these questions; I left Morgan Associates after the trial ended and tried, with some success, not to follow the follow-up too closely. But here’s a stab (repeat: take these responses with a grain of salt, since I’m not certain of any of it):

    I believe Sears did recover some att’y fees, but nothing like what they actually spent.

    So far as I know no one at EEOC suffered any repercussions, except possibly embarrassment and a bad press.

    As I recall Thomas was quoted as having made some disapproving comments about the Sears litigation but I don’t believe he had any practical effect on it.

  11. Ed Gavin October 29, 2002 at 1:59 pm | | Reply

    John, I majored in history at the University of North Carolina. Now I’m an assistant attorney general with the North Carolina Department of Justice, where I do defense work in discrimination cases brought against State agencies. I thoroughly enjoyed your column on Professor Weiner and the EEOC v. Sears case. I’m going to bookmark your site and look forward to more such cogent, fast-paced argument.

  12. Endless Summers June 27, 2012 at 10:19 am |

    […] with my friend, but because of my long involvement in the EEOC v. Sears case (discussed at length here) I soon came to realize, in spades, that politically engaged scholarship, or political commentary […]

  13. […] the dollar” that men earn has been much in the news lately. For reasons I explained in this old, long post (see the last two thirds or so of that post) discussing my involvement in a big case (at the time […]

  14. Déjà Vu All Over Again April 12, 2014 at 10:49 am |

    […] my last post I had occasion to refer to an old post (in its last two thirds) dealing with the incompetence of the EEOC. So I see today from the Daily […]

  15. […] the warts on their own party. For example, in my discussion of EEOC v. Sears, Roebuck and Co., here, I mentioned several historians who opposed history being used in the defense of a corporation […]

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