The controversy surrounding the absence of African American Oscar nominees has now been given a statistical baseline in the form of a report issued by the Diversity and Social Change Initiative at the University of Southern California.
The figures in the report back up the complaints of those who say, as USC Professor Stacey L. Smith does, that "we have an inclusion crisis." Only a third of the speaking characters in 414 films and TV series were women. Minorities had about a quarter of those roles, even though they make up almost 40% of the population. Things were even worse when it came to directors; women accounted for only 3.4% of the films surveyed, and of those a mere two were black women. Statistics like these (and there were many more in the same direction) led the researchers to devise an "inclusivity index," a report card indicating the degree to which diversity has been achieved by the major film and TV studios. Everyone flunked.
The question I would ask is, what does the inclusivity index measure? The answer implied by the tone of the report is that it measures social irresponsibility and moral failure. But that answer provokes other questions: What is it that the studios are responsible for, and to the standards of whose morality are they being held? And then there is a third, overriding question: Are the studios properly in the morality business at all? I don't think so.
Like the manufacturers of any product, studios must determine what their target consumers want — what features are likely to get people to part with their money. And if they believe that moviegoers will be either turned off or unexcited by minority themed and populated films, it would be irrational to offer that product, just as it would be irrational for automobile makers to offer small, gas-efficient cars when the market demand is for SUVs.
The result might look like blatant discrimination or willful disregard of the cultural environment, but the statistics, rather than reflecting a malign intention, would reflect a reasonable, even obligatory, choice. (Granted, this analysis fails to account for the small number of women and minority directors given that directors are off-screen and therefore not visible. It also ignores the possibility that the studio executives' assumptions about moviegoer preferences may be factually incorrect.)
Years ago, law professor Ian Ayres investigated the disparities between the way women and minorities were treated by car salesmen. He found that "white women had to pay 40% higher markups than white men; black men had to pay more than twice the markup, and black women had to pay more than three times the markup." One might explain these differences, Ayres observed, by invoking animus: "A certain group is treated differently because that group is disliked or hated." But he found what he considered a better explanation in the desire of the dealerships to maximize profits, avoid loan defaults and secure repeat business. If, for example, it were determined that certain groups were "greater credit risks," it would make good business sense to charge members of the high-risk groups a higher markup.
On the same reasoning, one might argue that what the USC report uncovers are not bad motives — discriminating is not what the studios set out to do — but reasonable professional calculations.
There is an obvious counterargument: The studios should set out to do more; rather than responding to professional imperatives, narrowly conceived, they should respond to the national commitment to eradicate discrimination and provide a level playing field for all; they should not only have an absence of bad motives, they should have affirmatively good motives; they should, in short, set out to do good.
But — and this is the counterargument to the counterargument — doing good is not the business they are in and no one is paying them to do it. Making movies is a commercial enterprise and the rules in play are the rules of thumb used by those trying to predict commercial success. Of course it is entirely possible that commercial success might bring with it moral benefits; a popular and award-winning film might spark interest in an issue that had been neglected. But that would be an unintended (if welcome) consequence, and even if it were intended — even if the filmmakers wanted to make a statement that would have salutary real-world effects — they could succeed in doing so only if they paid close and faithful attention to the market considerations that determine whether they will have an audience at all.
Those considerations are not moral, although neither are they immoral; they are, to use the key word again, professional, and they are the considerations that will rightly occupy the minds of the filmmakers most of the time, if not all of the time.
Back in the late 1980s I became the chairman of an English department that had few women members and none in senior positions. For years I recruited and hired women and only women. Why? Not because I wanted to rectify a societal wrong, but because I wanted to improve the department's position in the profession. I knew that a) the graduate student population was becoming increasingly female, b) that much of the avant-garde work in the field was being done by a few high-profile women who were teaching high-level students at prestigious universities, and c) that it would be hard to recruit accomplished female scholars, junior or senior, to a mostly male department. (This was not speculation; my wife, an eminent scholar, resisted coming to a place "like that" until I persuaded her that it could be changed.) Maybe I did some good — I'm not against it— but doing good was not what I had in mind.
One big problem with the analysis I have just offered is that it seems to be an argument for the maintenance of the status quo. If social good can only be generated incidentally and accidentally by professional agendas whose priorities are elsewhere, how can we ever bring it about that prevailing marketplace conditions will be receptive to our deepest moral hopes? What can we do?
It may be that the problem will take care of itself if — as some recent studies indicate — the target audiences are becoming more receptive to the kinds of films and shows the diversity crusaders demand. Should that happen, the market conditions and the hopes some have for changes in society will have merged.
I don't know of anything better to suggest, but I do know that the solution, if there is one, will not be found in the warring pieties that now command the conversation: On the one hand the piety of doing the right thing, and on the other, the piety, beloved by conservatives and some aging movie stars, that we should consider merit and only merit.
The trouble with the first piety is, as I have argued here, that doing the right thing is not the industry's business. The trouble with the second is that no one has any idea of what merit is, or — and it amounts to the same thing — that every side has its own definition. "Merit" is just a slogan whose content is always political despite the usual claims to neutrality and objectivity. Reading the literature produced by this brouhaha (a dispiriting experience) leads me to conclude that at this juncture, slogans are all we have. Maybe Oscars host Chris Rock will give us more.
Stanley Fish teaches law at Florida International University and the Cardozo School of Law.