Apr 27, 2011 - Naomi Cahn and Nancy Levit for their comments on earlier drafts of this ...... See generally Linda K. Kerber, Separate Spheres, Female Worlds, ...
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
4/27/2011 7:59:14 AM
Unpacking Inequality and Class : Family, Gender and the Reconstruction of Class Barriers
JUNE CARBONE* ABSTRACT
The changing economy and evolution of political ideas have led to a resurgence of the idea of class in American discourse. Relatively little of that discourse, however, acknowledges the role of greater inequality as a critical force remaking the family along class lines. The political right exploits class resentments in championing “family values” but disavows any effort to link family changes to greater economic inequality rather than individual moral failings. The political left acknowledges economic exploitation but insists on addressing it only within identity categories such as race, gender, or sexual orientation rather than its own force. There is now irrefutable data that the tendency to raise children within two‐parent families is a potent marker of class, reinforcing class barriers and dramatically affecting America’s human‐capital acquisition. Renewed attention to “class” as a category is accordingly long overdue. “Class” refers to categories of social construction more fluid than race, ethnicity, or caste and more fixed than occupation, religion, or party. Class is a product of the allocation of resources, which depends on the family organization to channel investment in children. This Article examines the social construction of class through the lens of gender and family. It examines the growing economic inequality that has rejuvenated interest in the relationship between the economy, gender, divorce, and non‐marital births. It concludes that dismantling class barriers will turn on better employment prospects for men, more flexible attitudes toward gender, greater investment in children, and more effective support for families. * Edward A. Smith/Missouri Chair of Law, the Constitution and Society, University of Missouri‐Kansas City; J.D., Yale Law School; A.B., Princeton University. I would like to thank Naomi Cahn and Nancy Levit for their comments on earlier drafts of this Article and Anika Hickman for her research assistance.
527
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
528
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
INTRODUCTION
T
he idea of class is enjoying a resurgence in American discourse. The resurgence started with recognition of increasing inequality and stalling upward mobility, focusing renewed attention on the losers in the post‐industrial economy. The left, which long ago abandoned class for race, gender, and, more recently, sexual orientation as targets of mobilization, is rediscovering the intersection of these identity categories with economic status. In the meantime, the right has embraced the faux populism of the Tea Party, solidifying its gains with the white working class, the group most threatened by the changing economy, and directing populist anger at the intellectual elites who supposedly sneer at traditional values. Little of this discourse, however, takes place under the “class” label, and even that label has no consistent framework for analysis. On the left, “class” has most prominently served to identify exploitation, starting with the Marxist critique of capitalism as a system in which the owners of the means of production appropriate the surplus value created by the workers.1 While progressives still distrust Wall Street and Main Street, railing against capitalist owners produces much less resonance when workers worry more about the movement of jobs overseas than about plant conditions or wages.2 The right, in contrast, tends to denounce any effort to mobilize workers as “class warfare,” while selectively appealing to the status anxieties of those who have lost ground in the new economy. Thus, it simultaneously denounces the supposed elitism of Hollywood, President Obama, or the secular coasts while championing the Main Street and Wall Street elites who have prospered over the last quarter century at the expense of the rest of the country.3 Yet, during the same period, “class consciousness,” which was never as strong in the United States as in some areas of Europe, waned with the declining political clout of the trade union movement and the breakup of the New Deal coalition that had linked the white working class with racial minorities and a growing intellectual elite in support of a stronger government role in the country’s economic life.4 1 Angela P. Harris, Theorizing Class, Gender, and the Law: Three Approaches, 72 LAW & CONTEMP. PROBS. 37, 44‐45 (2009). 2 Paul Pierson and Jacob S. Hacker, however, note that the ability of employers to choose among states as well as foreign jurisdictions has aggravated income inequality. JACOB S. HACKER & PAUL PIERSON, WINNER‐TAKE‐ALL POLITICS: HOW WASHINGTON MADE THE RICH RICHER—AND TURNED ITS BACK ON THE MIDDLE CLASS 59‐60 (2010). 3 Id. at 1‐2. 4 See JOAN C. WILLIAMS, RESHAPING THE WORK‐FAMILY DEBATE 151 (2010) (“It’s no mystery how the New Deal Coalition died: white working‐class voters left.”).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
529
In this Article, I argue that the renewed attention to class, whether “class conscious” or not, is warranted. The idea of class, however, is due for redefinition. The word “class” refers to categories of social construction more fluid than race, ethnicity, or caste, yet less permeable than voluntary units such as professions, sports teams, or church groups. The problem, however, with definitions from the left, which try to identify categories of exploitation, and the right, which are more likely to justify existing inequities as the product of individual decisions, is that both are static. It might be true, for example, that the modern economy rewards investment in education in ways that simultaneously reflect genuine merit (as the right claims) and that make it systematically more difficult for the less privileged to succeed (as the left insists). Yet, such claims do not necessarily call attention to the mechanisms that create class divisions. This Article argues that the most important mechanisms are those that channel societal resources. These mechanisms include not only wealth and income, but also time, parental attention, and human capital acquisition. The new economy rewards the resulting educational and cognitive achievement, and the changing family concentrates advantages in those who have adapted to the new economy. In the meantime, the modern political and media environments make the resulting inequalities seem like natural, inevitable, or self‐fulfilling prophecies.5 The right and left, though both concerned about the effects of family change, dispute the causes and disagree as to whether the solution lies in reinstilling the discipline that comes from individual responsibility or undertaking a fundamental reexamination of the source of economic power in the country. This Article argues that breaking through these disagreements will require recognition that family structure has emerged as a marker of class and that it reflects both changing economic realities and new class strategies with different normative understandings. While both Marxist notions of class and modern analyses of income inequality in the United States focus on the power of the elite 1‐2% or the victimization of relatively unskilled workers, development economics emphasizes that the well‐being of a society is associated with the size and strength of its middle class. The middle class has long been defined in terms of the acquisition of education, skill, and expertise; middle‐class children start life without the wealth necessary to guarantee an easy future, but with sufficient resources to
5 See, e.g., Athena D. Mutua, Introducing ClassCrits: From Class Blindness to a Critical Legal Analysis of Economic Inequality, 56 BUFF. L. REV. 859, 861‐62 (2008) (“[I]nequality is discussed as the natural byproduct of the differing interests, talents, and education that individuals bring to that mysterious thing political economists and neo‐classical economists alike refer to as the ‘market.’”).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
530
4/27/2011 7:59:14 AM
New England Law Review
v. 45 | 527
secure a decent living through wise investment and productive work.6 The United States, which has long thought of itself as a middle‐class country with elite ranks less reflective of inherited wealth than European societies, came to prominence in part through its emphasis on securing education for all of its citizens.7 Yet, securing educational achievement requires a marshaling of individual and societal resources, and today, American educational achievement is lagging behind that of many other industrialized nations, eroding the pathways to middle‐class life.8 The changing family is as much a part of these developments today as family changes were to the creation of the middle class during nineteenth‐ century industrialization. Historians maintain that the middle class of the industrial era emerged with a reorganization of the middle‐class family, channeling significant resources into the education of the young men who would staff the professions, laboratories, and management ranks of the new economy.9 Making the investment possible meant recreating women’s roles by placing greater emphasis on chastity, literacy, deferred marriage, and lower fertility.10 The post‐industrial economy changes the nineteenth‐ century dynamic by rewarding investment in women as well as men. Realizing the benefits of that investment requires, in turn, further delay in marriage, even more greatly reduced fertility, and greater emphasis on parental attention to children. The results in an era of inequality, however, have destabilized working‐class families even as the well‐educated middle class overwhelmingly raises their children in stable, two‐parent unions. This Article examines the social construction of class through the lens of gender and family. In doing so, Part I of this Article first examines the growing economic inequality that has increased interest in the idea of class. Part II considers the definition of class and the meaning of class divisions. Part III discusses the relationship between family, gender, and the workplace, comparing the nineteenth‐century foundation for the middle class with the late twentieth‐century transformation in women’s roles. Part IV critiques the role of family in reflecting and exacerbating greater 6 See, e.g., John Parker, Burgeoning Bourgeoisie, ECON. (Feb. 12, 2009), http://www. wichaar.com/news/295/ARTICLE/12328/2009‐02‐20.html. 7 See generally CLAUDIA GOLDIN & LAWRENCE F. KATZ, THE RACE BETWEEN EDUCATION AND
TECHNOLOGY (2008) (arguing that the relationship between the supply of skilled workers and the demand explains some of the increase in income inequality and that the United States, which led the world in the educational achievement of its citizens for much of the twentieth century, now lags behind many other developed nations). 8 See 147 CONG. REC. S13374 (daily ed. Dec. 18, 2001) (statement of Sen. Mark Warner)
(“[O]ur education system continues to lag behind other comparable nations.”). 9 For a summary of these developments, see JUNE CARBONE, FROM PARTNERS TO PARENTS: THE SECOND REVOLUTION IN FAMILY LAW 123‐29 (2000). 10 Id. at 63‐66.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
531
economic inequality. Finally, Part V maintains that any long‐term solution must consider the relationship between work and family globally, rather than piecemeal: the dismantling of class barriers will turn on better employment prospects for men, more flexible attitudes toward gender, greater investment in children, and more effective support for families. I.
Inequality Magnified
The renewed interest in class has been fueled by increased inequality, and the figures are striking.11 In 1915, a statistician at the University of Wisconsin sought to assure Americans that they shared in the wealth of the country. Yet, he found to his surprise that the top 1% of the country earned 15% of the nation’s income.12 Today, the top 1% earn 24% of the nation’s income.13 The top 10% earn 45% of all income without capital gains and 50% with capital gains included.14 The current level of income inequality is a product of changes occurring over the last thirty years. According to measurements by economist Emmanuel Saez, income inequality in the United States is now at the highest level in a century.15 Indeed, Saez’s figures show that in the last one hundred years, income inequality peaked just before the Wall Street crash of 1929, remained high through the Depression, fell dramatically during World War II, remained low through the “Great Compression” (1941‐1979),16 and then increased dramatically during the 11 In this section, the term “inequality” is being used to mean disparities in the distribution of income through the types of measures discussed above. See supra notes 9‐10 and accompanying text. “Class” refers to the creation of group identity based on economic position. See infra Part II. 12 Timothy Noah, The United States of Inequality, SLATE.COM (Sept. 3, 2010, 3:06 PM), http://www.slate.com/id/2266025/entry/2266026 (citing WILLFORD I. KING, THE WEALTH AND INCOME OF THE PEOPLE OF THE UNITED STATES (Richard T. Ely ed., 1915)). Noah observed that a “more authoritative subsequent calculation puts the figure slightly higher, at about 18 percent.” Id. 13 Id. 14 Id. (citing Thomas Piketty & Emmanuel Saez, Income Inequality in the United States, 1913‐ 1998, 118 Q.J. ECON. 1, 8 (2003)). 15 Piketty & Saez, supra note 14, at 12. 16 See LARRY M. BARTELS, UNEQUAL DEMOCRACY: THE POLITICAL ECONOMY OF THE NEW GILDED AGE 9 (2008). Bartels showed that during the period of the “Great Compression,” which he identified with the period 1947‐1974, income grew at roughly the same rates for all sectors of American society, with the 95th percentile in fact growing somewhat less robustly than the other groups. In contrast, during the period of the “Great Divergence,” which he identified with the years 1974‐2005, the percentage increase in income growth increased with each increase in income. The 20th percentile experienced a 10% growth, the 40th percentile, a growth of 18.6%, the 60th percentile a growth of 30.8%, the 80th percentile a growth of 42.9%, and the 95th percentile, a growth of 62.9%. See id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
532
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
“Great Divergence” (since 1980)17 Between 1980 and 2005, the U.S. economy grew steadily, but 80% of the increase in income went to the top 1% of U.S. earners.18 Indeed, those at the 99.99th percentile (about 13,000 people) increased their income between 1985 and 2005 by a factor of 5 (amounting to an increase of over $4 million per year) and those at the 99.90th percentile tripled their incomes (a gain of several hundred thousand a year), while those below the 99.00th percentile showed relatively modest gains.19 Saez’s figures focus on the dominance of the top income earners. Other studies compare the top earners with the bottom and the middle. Male high school dropouts in 1997, for example, earned only 70% of what they earned in 1973.20 White males in the middle of the distribution saw their wages stagnate.21 Moreover, while wages increased for a broader portion of the population in the late nineties, they leveled off during the Bush Administration, even though productivity and corporate profits increased substantially.22 The pre‐tax income of American workers has not risen proportionately in good times; yet, they have borne a disproportionate share of the current economic downturn.23 In August 2010, for example, the unemployment rate for high school graduates rose to 10.3% in comparison with a 4.6% rate for those with a bachelor’s degree or higher. Unsurprisingly, those laid‐off college graduates also find new work faster, with median unemployment of 18.4 weeks, compared to 27.5 weeks for those with just a high school diploma.24 In addition, unskilled workers have greater difficulty finding new positions at older ages than they do 17 Noah, supra note 12. 18 Id. 19 BARTELS, supra note 16, at 10‐11. 20 Jared Bernstein & Heidi Hartmann, Defining and Characterizing the Low‐Wage Labor Market, in U.S. DEP’T OF HEALTH & HUMAN SERVS., THE LOW‐WAGE LABOR MARKET: CHALLENGES AND OPPORTUNITIES FOR ECONOMIC SELF‐SUFFICIENCY 15, 25 (Kelleen Kaye & Demetra Smith Nightingale eds., 2000), available at http://www.urban.org/UploadedPDF/lowwage_labor_ FR.pdf. 21 Daron Acemoglu, Technical Change, Inequality, and the Labor Market, 40 J. ECON. LIT. 7, 15‐ 16 (2002). 22 JARED BERNSTEIN & LAWRENCE MISHEL, ECON. POLICY INST., ECONOMY’S GAINS FAIL TO REACH MOST WORKERS’ PAYCHECKS 2 (2007), available at http://www.policyarchive.org/handle/ 10207/bitstreams/8028.pdf. 23 See BARTELS, supra note 16, at 18, 20, 22; Memorandum from Heather Boushey et al. of the Ctr. for Am. Progress, New Census Data Reveals Decreased Income and Health Coverage 1, 4‐ 5 (2010), available at http://www.americanprogress.org/issues/2010/09/pdf/census_poverty_ memo.pdf. 24 Conor Doughetry, College Grads Expand Lead in Job Security, WALL ST. J., Sept. 20, 2010,
http://online.wsj.com/article_email/SB10001424052748704362404575479603209475996‐lMyQjAx MTAwMDIwNjEyNDYyWj.html.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
533
when they are young, increasing their tendency to retire or leave the full‐ time labor force at younger ages than more skilled workers, which compounds income disparities.25 These changes make upward mobility more difficult. While America is still the country where the highest proportion of people (69%) are likely to agree that individuals are rewarded for intelligence and skill, it is not true that the United States offers more opportunities for social mobility than other countries. In international surveys of social mobility, the United States ranks somewhere in the middle of developed nations and lower than countries such as France, Germany, Sweden, Denmark, Spain, Canada, and Australia.26 The lack of mobility is particularly striking for the top and bottom of the income distributions, the groups that have been most affected by overall economic changes.27 Political scientist Larry Bartels reported that the effect of parental income on men’s economic fortunes “declined between 1940 and 1980 but increased during the 1980s and 1990s.”28 Some economists have attributed “The Great Divergence” to greater returns to education, but new studies express increasing skepticism. While the least educated males have shown income declines, the increases for the upper end of the income scale reflect changes in executive compensation more than increasing returns for technical skills. Between 1989 and 1997, for example, the earnings of engineers declined by 1.4%, rose a modest 4.8% for computer scientists and mathematicians, and at the same time doubled for CEOs.29 These changes have affected not just relative income, but relative political power. Bartels reports, for example, that on issues as varied as the tax cuts or social issues like abortion, both Democratic and Republican legislators have become more responsive to the views of their affluent constituents and totally unresponsive to the perspectives of the bottom third of the income distribution.30 In summarizing the causes of inequality, Journalist Timothy Noah emphasized that, with greater concentration of 25 See, e.g., Motoko Rich, For the Unemployed Over 50, Fears of Never Working Again, N.Y.
TIMES, Sept. 21, 2010, http://finance.yahoo.com/focus‐retirement/article/110742/for‐the‐ unemployed‐over‐50‐fears‐of‐never‐working‐again?cat=fidelity_2010_changing_jobs &mod=fidelity‐changing jobs. 26 JULIA B. ISAACS ET AL., BROOKINGS INST., GETTING AHEAD OR LOSING GROUND: ECONOMIC MOBILITY IN AMERICA 37‐39 (2008), available at http://www.brookings.edu/~/media/Files/ rc/reports/2008/02_economic_mobility_sawhill/02_economic_mobility_sawhill.pdf. 27 Id. at 7, 37‐39 (noting the “stickiness” at the tails of the distribution). 28 BARTELS, supra note 16, at 16 (quoting Emily Beller & Michael Hout, Intergenerational Social Mobility: The United States and Comparative Perspective, 16 FUTURE CHILD. 19, 30 (2006)). 29 Id. at 17. 30 Id. at 267‐68.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
534
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
wealth in the richest 1% of Americans, lobbying has increased, government policies have become more attentive to the affluent, and the institutional constraints that once restrained the concentration of wealth are being systematically dismantled.31 Bartels concluded that the growing influence of the affluent may reflect not just their greater wealth and access, but different worldviews that legislators have become more likely to share.32 Given these developments, the resurgence of interest in class is hardly surprising, but it remains unclear where the inquiry will lead. II. Class Redefined Class has been the customary lens for the examination of economic inequality, but there is no ready‐made definition of it for the modern economy. Angela Harris observed that the concept of class is “simultaneously symbolic and material.”33 These two dimensions—the symbolic and material—overlap, but they often lead to different focal points. The first, the symbolic, addresses class as an aspect of identity that could shape attitudes, dress, interactions, perceptions, and loyalties.34 The second, the “material” part of class, considers the extent to which class position influences “what kinds of labor people perform, what labor counts as work, and who does what sort of work.”35 Harris noted that, to the extent that the American public considers class as either a part of social identity or a material explanation for the distribution of resources, it has been characterized more by “class blindness” than class consciousness.36 Further, the scholars most willing to analyze economic position as an element of social construction see class as an integral part of more visible categories such as race and gender, rather than as an independent component of identity.37 Addressing class as an element of racial or ethnic disadvantage without acknowledging it as a force of its own, however, obscures the role of class in channeling the resources that affect the status and well‐being of American families. 31 See generally Noah, supra note 12 (discussing economic inequality and political blame). 32 BARTELS, supra note 16, at 281‐82. 33 Harris, supra note 1, at 37‐38. 34 See id. at 38‐39. Harris observes, for example, that “[f]rom a doctrinal perspective, employment discrimination law is one obvious place where issues of gender and class as aspects of personal identity frequently arise, as employees and employers struggle over the extent to which gender performances may be penalized—or demanded—in the workplace.” Id. at 39. 35 Id. at 39‐40. 36 Id. at 38 (noting the “near absence of class as a folk category in the contemporary United States”). 37 For an effort to prompt “class‐crits” legal scholarship, see generally Mutua, supra note 5.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
535
The idea of class, and particularly the notion of class as a political, as well as social, category, is most famously associated with Marx’s critique of capitalism, which he defined in terms of two broad groups: the “capitalists,” who own the means of economic production and profit from the labor of workers, and the workers, who must sell it to capitalists in order to survive.38 Marx’s categories are ones of antagonism and exploitation. He saw factory production as dull and routinized and identified capitalist exploitation with the owners’ appropriation of the “surplus value” of the products of industrial production, and the workers’ alienation with the use of mass production to replace custom‐crafted goods.39 Marxist analysis suggests that, because of the wealth generated by ownership of the means of production, the capitalist class will dominate the state as well as the private sector, and only the organization of the “proletariat” in opposition to the capitalist overlords could produce a more just society.40 Neo‐classical economists reject both Marx’s descriptive and normative claims. Rather than a “labor theory of value,” price theorists treat the price of labor, as well as capital, as the product of the laws of supply and demand.41 Moreover, rather than see capitalism as producing fixed and unjust social classes, economists tend to see capitalism as a dynamic force, endlessly encouraging further innovation.42 These analysts distrust state intervention, which might either discourage future investment or lock in the dominance of early movers such as the American auto companies, insulating them from market pressures to adopt labor‐saving devices or 38 Harris, supra note 1, at 44‐45. 39 See, e.g., Friedrich Engels, Socialism: Utopian and Scientific, in THE MARX‐ENGELS READER 683, 700 (Robert C. Tucker ed., 1978) (explaining Marx’s notion of surplus value, Engels states that, “the appropriation of unpaid labour is the basis of the capitalist mode of production and of the exploitation of the worker”). 40 Marx’s “dictatorship of the proletariat” referred to the idea that 90% of the people who constituted the workers would be able to gain control of the state, even in a democracy, only if they could counter the wealth and power of the dominant capitalist class. See, e.g., Detlev F. Vagts, Book Review, 103 AM. J. INT’L L. 178, 179 (2009) (reviewing INTERNATIONAL LAW ON THE LEFT: RE‐EXAMINING MARXIST LEGACIES (Susan Marks ed., 2008)) (“Marx and Engels expected and advocated proletarian resorts either to the ballot box or to insurrection. The result would be a dictatorship of the proletariat transitioning into a full democracy.”). 41 See, e.g., ALFRED MARSHALL, PRINCIPLES OF ECONOMICS 526 (8th ed., 1920) (“The normal
value of everything, whether it be a particular kind of labour or capital or anything else, rests, like the keystone of an arch, balanced in equilibrium between the contending pressures of its two opposing sides; the forces of demand press on the one side, and those of supply on the other.”); see also TODD G. BUCHHOLZ, NEW IDEAS FROM DEAD ECONOMISTS 166‐67 (1999) (rejecting Marx’s labor theory of value). 42 See, e.g., JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 82‐83 (2d ed. 1947).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
536
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
from otherwise becoming more competitive in global markets. Like Marx, economists agree that the combination of market and political power can entrench influential elites; however, unlike Marx, they would separate the effects of an unregulated and dynamic market from government action.43 Today, the type of command‐and‐control socialism Marx advocated for is in disfavor virtually everywhere, replaced by markets regulated through a mix of incentives and oversight.44 Yet, the idea that capital dominance may subvert the political process remains a powerful one.45 Sociological and historical commentary have complemented the economic analysis, however, describing the rise (and erosion) of class as a unit of social construction more dependent on psychology than economics. Thus, analyses of class standing in England describe the British upper crust, whose social dominance preceded the industrial revolution, as attributed to birth rather than mere wealth and more dependent on inheritance and ascribed character than individual accomplishment.46 Max Weber emphasized the importance of political power and social status or prestige in maintaining class distinctions from one generation to the next.47 Moreover, in the United States, economic position has often interacted with slavery or immigration to identify class with ethnicity, hardening the boundaries of economic categories. The rise of urbanization and industrialization in the nineteenth‐century United States, for example, coincided with immigration first from Ireland and later from southern and eastern Europe, identifying factory workers with the new migrants, rather than the Protestant native‐born.48 And the labor needs of the rust‐belt industries in the mid‐twentieth century fueled the internal migration of African‐Americans from the rural South to the urban North, replacing the earlier generation of immigrants in the least‐desired positions.49 These 43 See Harris, supra note 1, at 37‐38 (describing the ideological belief in “free markets” despite the fact that no effective markets exist without state regulation and state coercion in policing property rights and enforcing contracts). 44 See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 546‐47 (2000). 45 For a recent example, see HACKER & PIERSON, supra note 2, at 289‐91. See also JAMES K.
GALBRAITH, THE PREDATOR STATE: HOW CONSERVATIVES ABANDONED THE FREE MARKET AND WHY LIBERALS SHOULD TOO 10‐14 (2008). 46 See, e.g., HERBERT CROLY, THE PROMISE OF AMERICAN LIFE 3, 6 (1909) (distinguishing the relative openness of the United States from the aristocracy and landed gentry in England). 47 See Max Weber, Class, Status, Party, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 180, 180‐ 84 (H.H. Gerth & C. Wright Mills eds. & trans., 1946) (discussing relations between economic power and social power). 48 See, e.g., MARY P. RYAN, CRADLE OF THE MIDDLE CLASS: THE FAMILY IN ONEIDA COUNTY, NEW YORK, 1790‐1865, at 184‐85 (1981). 49 This was particularly true during World War II. For a summary of African‐American
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
537
changes in ethnic, religious, and racial composition have undercut the importance of class as a distinct element of identity. The new arrivals often think of themselves in ethnic rather than economic terms, and indeed to the extent new groups replace other groups, economic position does not necessarily harden into a fixed group identity. Instead, as Angela Harris observed, Americans tend to see “class discrimination” only where it intertwines with religion and race.50 This tendency to discount economic position as a category of its own, however, can obscure the mechanisms that produce class divisions. Historians and development economists often focus on the rise of the middle class as a historical phenomenon distinct from the relationship between capital and labor—one critical to the growth of stable democracies.51 Brazilian economist Eduardo Giannetti da Fonseca, for example, describes the middle class as “people who are not resigned to a life of poverty, who are prepared to make sacrifices to create a better life for themselves but who have not started with life’s material problems solved because they have material assets to make their lives easy.”52 In 2009, The Economist reported that for the first time in history, a majority of the world’s population is in some sense middle class.53 Susan Hamill argues that some form of education has always been related to middle‐ class status, from pre‐modern artisans to the well‐educated workforce of the twenty‐first century.54 This identification of the middle class with achievement, rather than birth or the benefits of ownership, makes analysis of middle‐class status different from questions of the dominance, power, or status of elites. Instead, it is a product of investment—investment of societies and families in the human capital of the next generation. migration, see CARBONE, supra note 9, at 77‐78 (“African‐Americans served as a reserve army available to take the jobs no one else wanted” and that African‐American male employment prospects increased most dramatically during World War II). 50 Harris, supra note 1, at 42. 51 For a description of the rise of the middle class in the late twentieth‐century context, see generally Susan Pace Hamill, A Moral Perspective on the Role of Education in Sustaining the Middle Class, 24 NOTRE DAME J.L. ETHICS & PUB. POL’Y 309, 314‐17 (2010). For a debate on the role of the middle class in creating democratic societies, see for example, Larry Diamond, Economic Development and Democracy Reconsidered, in REEXAMINING DEMOCRACY 93 (Gary Marks & Larry Diamond eds., 1992) (critiquing Seymour Martin Lipset, Some Social Requisites of Democracy: Economic Development and Political Legitimacy, 53 AM. POL. SCI. REV. 69, 71‐85 (1959)). 52 Parker, supra note 6. 53 Id. 54 Hamill, supra note 51, at 311. For an account of the relationship between the rise of the
middle class in England and family changes, see generally LAWRENCE STONE, THE FAMILY, SEX AND MARRIAGE IN ENGLAND, 1500‐1800 (Harper Colophon Books 1979) (1977).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
538
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
The re‐creation and maintenance of the middle classes may interact with the forces that produce super elites or undermine the well‐being of the unskilled. To understand the entire picture, however, it is necessary to start with the intersection of family and education that provides the foundation for middle‐class investments in human capital. III. Creating the Nineteenth‐Century Middle Class Class consciousness increased with industrialization. Yet, labor tensions between industrialists and unions may have obscured the more dramatic change taking place in American families during the industrial age, namely the reordering of family life to encourage investment in an expanding middle class.55 The needs of the middle class played a disproportionate role in setting the terms for family life throughout the country. And they did so through a recreation of gender roles. Historian Mary Ryan, in describing the transformation in upstate New York in the early part of the nineteenth century, emphasized that nineteenth‐century industrialism destabilized the earlier social order and created new opportunities. She observed that shopkeepers and skilled craftsmen constituted the middle class of Utica, New York in the early part of the century, but that between 1845 and 1856 their numbers dropped in half.56 This challenged the dominance of the white, Protestant middle class, but the Protestant natives retained their class advantage over the newly arriving Catholics, who staffed the factories, by placing greater emphasis on education.57 Greater emphasis on education did not just require sending more children to school for longer periods. According to Ryan, it also meant inculcating “values and traits of character deemed essential to middle‐class achievement and respectability.”58 This in turn meant greater parental supervision. Ryan observed that native‐born parents tended to keep the children at home for longer periods extending into their twenties.59 The family took on a new mission, and women, who in the preceding era had been viewed as their husbands’ helpmates (if not servants), took charge of that mission.60 55 RYAN, supra note 48. 56 Id. 57 Id. at 184 (“Prescient native‐born couples began in the 1830s to limit their family size, thereby concentrating scarce financial and emotional resources on the care and education of fewer children.”). 58 Id. 59 Id. 60 Alice Ristroph & Melissa Murray, Disestablishing the Family, 119 YALE L.J. 1236, 1261‐62 (2010). The authors observed that:
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
539
Joan Williams referred to these changes as the ideology of “domesticity,”61 and Angela Harris described them as an “elaborately articulated” redefinition of the roles men and women were to occupy within different spheres of social life: “men were to participate in the market as wage laborers, and women to be leaders in family relations, performing unpaid work both to reproduce the next generation and to care for the declining older generation.”62 Feminists such as Linda Hirshman and Jane Larson emphasized that the changes genuinely increased women’s autonomy and status—at least in the home.63 As the men departed the farms and the shops for jobs farther removed from the family, the white, Protestant middle class placed greater emphasis on women’s purity and their agency in overseeing the household, the children, and sexual activity.64 As women became more able and willing to say “no,” the number of brides who gave birth within eight‐and‐a‐half months of their wedding declined from 30% in 1800 to 10% in 1860; the average number of children per family fell from eight in 1800 to four by century’s end; and the average age of marriage rose.65 These changes remade family and gender to A critical component of this separate spheres ideology was the construction of the wife as the moral center of the household. The wife was responsible for making the home a haven from the vulgarities and immoralities of the public sphere, all while inculcating their children with the values and virtues necessary for citizenship. Id. (footnotes omitted); see also Mark E. Brandon, Home on the Range: Family and Constitutionalism in American Continental Settlement, 52 EMORY L.J. 645, 694 (2003) (“[T]he wife, as mistress of the home, was perceived by society and herself as the moral superior of the husband, though his legal and social inferior.”). 61 See Joan Williams, From Difference to Dominance to Domesticity: Care as Work, Gender as Tradition, 76 CHI.‐KENT L. REV. 1441, 1457 (2001). 62 Harris, supra note 1, at 45. 63 LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 91 (1998). They observed that within marriage women gained greater control over sexuality and reproduction, the legal basis for husband’s authority to beat their wives was undermined, and interest in women’s education and church activities increased. Id.; see also Barbara Welter, The Cult of True Womanhood: 1820‐1860, 18 AM. Q. 151, 151‐52 (1966). 64 The economic changes have been accompanied by what Joan Williams has termed the “ideology of domesticity,” which focused on the “separate spheres” of home and market and produced the “cult of true womanhood.” JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 23 (2000). 65 See CARL N. DEGLER, AT ODDS: WOMEN AND THE FAMILY IN AMERICA FROM THE REVOLUTION TO THE PRESENT 180‐83 (1980) (describing declining birth rates that followed women’s greater ability to decline sexual intercourse); Jane E. Larson, “Women Understand So Little, They Call My Good Nature ‘Deceit’”: A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 388‐90 (1993) (“Victorian culture exalted sexual restraint and designated women as caretakers of society’s sexual virtue.”).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
540
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
facilitate greater middle‐class investment in each child—an investment that involved greater parental supervision and greater costs associated with formal education. The transformation in gender roles started in the urban areas of the Northeast before the Civil War, but with time it influenced the standards applied in the country as a whole.66 To be sure, the new middle‐class standards often supplied the rubric by which other groups would be found wanting.67 Thus, child‐labor laws at the turn of the twentieth century reflected disapproval of the dependence of Catholic‐immigrant families on their children’s labor, and the failure to protect African‐American women’s virtue was viewed as a sign of racial inferiority during and long after slavery.68 Yet, over time, Americans came to see education as a pathway to advancement, and the country invested in universal public education well ahead of the rest of the world.69 Harvard economists Claudia Goldin and Lawrence Katz wrote that Americans became the best‐educated citizens in the world by the beginning of the twentieth century;70 for those born between 1870 and 1950, every generation exceeded the level of educational attainment of the preceding generation.71 Goldin and Katz argued that the increases helped fuel American economic expansion and contributed to the postwar reduction in economic inequality.72 By 1970, a large part of the population enjoyed the benefits of middle‐class status, and a substantial 66 See, e.g., RYAN, supra note 48, at 184‐85 (comparing the standards of the native‐born Protestant middle class with the Catholic working class). 67 Indeed, in the modern era, Harris observed that:
[C]ontemporary welfare regulations continue to express popular understandings of fitness for full citizenship. When the federal programs we call “welfare” were instituted, payments were granted so that mothers without husbands could stay at home and care for their children. Today, mothers receiving TANF (Temporary Assistance for Needy Families) are expected to engage in wage work in order to be considered deserving of state economic support. Harris, supra note 1, at 46. 68 See, e.g., ELIZABETH FOX‐GENOVESE, WITHIN THE PLANTATION HOUSEHOLD: BLACK AND
WHITE WOMEN OF THE OLD SOUTH 192‐241 (1988) (describing the gulf between slaveholding and enslaved women in the antebellum American South); JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK WOMEN, WORK, AND THE FAMILY FROM SLAVERY TO THE PRESENT 1‐ 151 (1985) (comparing the experience of free and enslaved black women in the southern United States). See generally Linda K. Kerber, Separate Spheres, Female Worlds, Woman’s Place: The Rhetoric of Women’s History, 75 J. AM. HIST. 9, 10 (1988). 69 See Kerber, supra note 68, at 24. 70 GOLDIN & KATZ, supra note 7, at 1‐2. 71 Id. at 4. 72 Id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
541
portion of the children of factory workers could realistically expect to attend college.73 By the end of the seventies, however, the American educational advantage over the rest of the world, the increasing educational achievement of successive generations, and the decline in inequality that came with that achievement were coming to an end.74 The economic system originating in the nineteenth century that defined class in terms of a manufacturing economy and divided the worlds of work and family into separate spheres is giving way to an information economy with different labor needs and spatial organization.75 This new system is redefining the terms of entry into the middle class and the corresponding organization of family and gender that recreates class standing. It remains to be seen whether the majority of the American population will continue to have access to the benefits of middle‐class life or whether the result will be greater inequality on a long‐term basis. IV. The New Pathways to Class Advantage The growth in inequality in the United States over the last thirty years created four recognizable classes: (1) the top 1%, concentrated in the financial sector and top management ranks, the principal beneficiaries of the increase in inequality;76 (2) the highly skilled with college and graduate degrees whose income has steadily increased; (3) those at the midpoint of the income scale, with high school, but not college, degrees, whose income has stagnated; and (4) the bottom quintile, consisting largely of those without high school diplomas who have lost ground.77 Of these four groups, the group whose class position is most dependent on investment in education is the second group, the highly skilled with college and graduate degrees. Understanding the contrast—and the widening gulf—between this middle‐class group and the stable working class that lacks a college 73 Economists refer to the period between the mid‐forties and the mid‐seventies as “The
Great Compression.” See, e.g., Claudia Goldin & Robert A. Margo, The Great Compression: The Wage Structure in the United States at Mid‐Century, 107 Q.J. ECON. 1, 1‐5 (1992). 74 Id. at 3. 75 See id. at 5. 76 See supra Part I. 77 Men who have dropped out of high school have seen their wages decline substantially more than high‐school‐drop‐out women. The men earned 28% less in real dollar terms in 2007 than in 1979 while the women earned 8% less. See REAL HOURLY WAGE FOR ALL BY EDUCATION, 1973‐2007, in ECON. POLICY INST., THE STATE OF WORKING AMERICA, 2009‐2010 tbl.3.15, available at http://www.epi.org/page/‐/datazone2008/wage%20comp%20trends/wage byed_a.xls (summarizing trends for all workers); MEN’S REAL HOURLY WAGE BY EDUCATION, 1973‐2007, in ECON. POLICY INST., THE STATE OF WORKING AMERICA, 2009‐2010 tbl.3.16, available at http://www.epi.org/page/‐/datazone2008/wage%20comp%20trends/wagebyed_m. xls.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
542
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
diploma requires a reexamination of changes in the family.78 As argued above, the industrial revolution in the United States laid the foundation for the emergence of the middle classes by (1) investing in women’s virtue and management of the home; (2) policing sexuality to encourage postponing marriage until the man completed school and acquired a position capable of supporting a family; (3) reducing the number of children; and (4) investing more in each child. Twentieth‐ century changes reinforced the system and ultimately opened up the advantages of middle‐class family life to a larger proportion of the population.79 The system, however, began to change in fundamental ways in the fifties. The fifties, of course, are the years of the “baby boom,” the dramatic increase in the birth rate following World War II. While many Americans looked back with nostalgia on the families of the fifties, Stephanie Coontz emphasized that: In fact, the “traditional” family of the 1950s was a qualitatively new phenomenon. At the end of the 1940s, all the trends characterizing the rest of the twentieth century suddenly reversed themselves: For the first time in more than one hundred years, the age for marriage and motherhood fell, fertility increased, divorce rates declined, and women’s degree of educational parity with men dropped sharply.80
These changes partly reflect post‐war prosperity—overall fertility fell and the average age of marriage increased during the Great Depression and reversed course with the return of the troops from World War II. The changes also mark the unheralded beginning of the sex revolution.81 Coontz noted that, along with the increase in marital births, came an 80% increase in the number of babies placed for adoption and a doubling of the percentage of white brides who gave birth within eight‐and‐a‐half months of the nuptials.82 The results undid the hallmarks of the nineteenth‐century 78 For a definition of the differences between the college‐educated middle class and the stable working class, see WILLIAMS, supra note 4, at 155‐64. Williams also distinguishes the settled working class from their “hard living” neighbors. Id. at 164‐66. 79 See supra Part III. 80 See
STEPHANIE COONTZ, THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE NOSTALGIA TRAP 25 (1992). 81 Some scholars attribute the change to the availability of cars and the rise of the suburbs, which created more spaces where teens could escape adult supervision. See, e.g., BETH L. BAILEY, FROM FRONT PORCH TO BACK SEAT: COURTSHIP IN TWENTIETH‐CENTURY AMERICA 19, 86‐87 (1988) (explaining how the invention of the automobile contributed to the rise of dating by giving young people both privacy and mobility); Carol Sanger, Girls and the Getaway: Cars, Culture, and the Predicament of Gendered Space, 144 U. PA. L. REV. 705, 730‐33 (1995). 82 COONTZ, supra note 80, at 39. The return of the shotgun marriage is perhaps the most
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
543
foundation for the middle class and threatened the educational achievement of American women just as the doors to greater workforce participation were opening.83 The response, which involved the more heralded “sex revolution” of the sixties and seventies, could be better termed “the recreation of the middle class.” The nineteenth‐century foundation for the middle class depended on enhancing the status of women and giving them greater control of their sexuality.84 Twentieth‐century economic and social changes replaced control of sexuality with greater emphasis on women’s education, employment, and control over childbearing. The result remade middle‐ class norms through an interacting set of developments that started with: Dramatically greater access to higher education. From 1960 to 1970, the number of college students doubled and then increased an additional 41% in the seventies.85 The number of women students increased at a faster rate than men, with equal numbers of women attending college by 1980 and today exceeding the percentage of men that attend college.86 Greater use of contraception. Before ratification of the Twenty‐Sixth Amendment in 1971, the age of majority in most states was twenty‐ one, and distribution of birth control to minors required parental consent, if state law permitted it at all. The birth control pill, which became widely available in the sixties, made contraception more reliable, and a series of judicial decisions that began with Griswold v. Connecticut in 1965 dismantled the legal barriers to access.87 Legalization of abortion. Roe v. Wade legalized abortion in 1973, and the number of abortions skyrocketed, peaking in the early eighties.88 dramatic change. In 1960, 30% of brides gave birth within eight and a half months of the marriage, a percentage last seen in 1800. See HIRSHMAN & LARSON, supra note 63, at 92. 83 Indeed, from 1960 to 2000, the average age of women college graduates with children under the age of five continued to fall. See Sara McLanahan, Diverging Destinies: How Children Are Faring After the Second Demographic Transition, 41 DEMOGRAPHY 607, 609‐10 (2004). 84 See supra Part III. 85 Russell W. Rumberger, The Job Market for College Graduates, 1960‐90, 55 J. HIGHER EDUC. 433, 436 (1984). 86 NICOLE STOOPS, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT IN THE UNITED STATES: 2003, at 2‐4 (2004), available at http://www.census.gov/prod/2004pubs/p20–550.pdf (explaining that in 2003, 30.9% of women aged 25‐29 were college graduates in comparison with 26% of the men). 87 NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES: LEGAL POLARIZATION
AND THE CREATION OF CULTURE 81‐84 (2010). 88 HEATHER
D. BOONSTRA ET AL., GUTTMACHER INST., ABORTION IN WOMEN’S LIVES 17
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
544
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
These changes remade women’s lives in a dramatically short time. Claudia Goldin and Lawrence Katz observed that the percentage of women who reported engaging in sex before the age of twenty‐one grew from about 40% of those born in 1945 to more than 70% of those born a decade later.89 Moreover, half of the women who engaged in premarital sex in the sixties did so with only their fiancés; by the mid‐1980s, less than 25% of the women who reported having premarital sex did so with only men they expected to marry.90 Yet, the increase in sexual activity corresponded with a “baby bust” that replaced the baby boom. Whereas the birth rate crested in 1957 at 97 births per 1000 teens between the ages of 15 and 19, by 1983, the rate fell by almost half, to 52 births per 1000 young women.91 Similarly, adoption rates between unrelated individuals peaked at all‐time highs in 1970, but dropped in half by 1975.92 During this same period, expectations about fertility changed. In 1963, 80% of non‐Catholic female college students wanted three or more children, and 44% wanted at least four. By 1973, just 29% wanted three or more children (and the group actually had fewer children than even those lower numbers)—an extraordinary shift in a ten‐ year period.93 Goldin and Katz emphasized that these changes were particularly dramatic for the college‐educated. Of the women born in 1950 and entering college in the late 1960s, half were married by the age of twenty‐three. For those born seven years later, in 1957, and entering college in the mid‐to‐late 1970s, fewer than 30% were married by twenty‐three (a year after the normal age of college graduation).94 With later ages of marriage, more women attended graduate school. Between 1950 and 1970, the ratio of women to all students in professional schools stayed flat, with no more than 10% in medicine, 4% in law, 1% in dentistry, and 3% in business administration.95 By 1980, however, the numbers had jumped to 30% in medicine, 36% in law, 19% in dentistry, and 28% in business
(2006), available at http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf. 89 Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives and Women’s
Career and Marriage Decisions, 110 J. POL. ECON. 730, 753 (2002). 90 KRISTIN LUKER, DUBIOUS CONCEPTIONS: THE POLITICS OF TEENAGE PREGNANCY 87‐95 (1997). 91 Goldin & Katz, supra note 89, at 730‐31. 92 Id. 93 Id. 94 Id. at 731. 95 Id. at 749.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
545
administration.96 In a careful empirical study that tracked the increase in the marriage ages of college graduates, Goldin and Katz found that the critical factor was contraception—states as diverse as Georgia and California that first lowered the age of majority showed the earliest movements toward postponed marriage. The availability of abortion reinforced the effect, but with smaller overall impact.97 With greater investment in education, more women entered the workplace permanently. Not only did women’s workforce participation increase across the board, it increased dramatically for the married mothers of young children—and it has increased most for those women with the most education.98 Economist Heather Boushey found, for example, that the “child penalty,” the effect of having a child on labor‐force participation rates, is negligible for highly educated women, while it is considerable for women with less education.99 She measured the penalty by comparing employment rates: women with less education who had children at home were 21.7% less likely to be employed than childless women with the same education. For women with a graduate degree, the difference was 1.3%.100 Overall, these changes suggest a new middle‐class strategy that parallels the nineteenth‐century version: invest in women’s education and earning capacity as well as men’s; push back the age of marriage and childbearing from the low ages of the anomalous 1950s through an emphasis on controlling childbearing rather than sex; and reap the benefits of two incomes. This strategy, however, has produced other long‐term changes in the family. One of the more immediate consequences was an increase in women’s bargaining power. With greater education and workforce participation, women gained greater independence; and with the ability to control childbearing, women could be more selective about when and with whom to enter marriage. Susan Moller Okin further observed that opportunities for “exit” enhanced bargaining power within relationships, and women acquired greater opportunity to leave an unhappy relationship because they enjoyed greater employment prospects on their own and had fewer children.101 As women became less dependent, men too felt less 96 Id. 97 Goldin & Katz, supra note 89, at 754‐55. 98 Leslie McCall & Christine Percheski, Income Inequality: New Trends and Research Directions, 36 ANN. REV. SOC. 329, 336 (2010). 99 HEATHER
BOUSHEY, CTR. FOR ECON. POLICY RESEARCH, ARE WOMEN OPTING OUT? DEBUNKING THE MYTH 11 tbls.5‐6 (2005), available at http://www.cepr.net/documents/ publications /opt_out_2005_11_2.pdf. 100 See id. 101 See SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 157‐59 (1989).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
546
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
compulsion to stay in unhappy relationships, further undermining the forces that had made marriage more lasting.102 The women with the most to offer became better able to insist on egalitarian relationships, but marriage in general became less stable.103 These changes, in turn, altered the nature of childrearing. Later marriage in itself is likely to correspond to lower overall fertility rates.104 Women’s workforce participation increases the opportunity cost (and the family tensions) of having more children. The combination of the suburbs, with their dependence on the automobile, and the disappearance of stay‐ at‐home moms, dismantled the community networks that supervised children, placing more emphasis on the role of individual parents.105 Modern studies of family time indicate that while mothers today spend substantially less time on housework than they did a half century ago, they spend as much time with their children, and fathers spend more.106 Today’s “helicopter” parents107 invest enormous amounts of time in overseeing homework, coaching sports teams, escorting their children to after‐school activities, and addressing their emotional needs. With these changes, children have become much more expensive, directly and indirectly. Overall fertility has fallen, and for the best 102 COONTZ, supra note 80, at 166 (“Although very few researchers believe that women’s employment has been a direct cause of the rising divorce rate, most agree that women’s new employment options have made it easier for couples to separate if they are dissatisfied for other reasons.”). 103 The issue of marital stability is a huge one, and scholars disagree on the sources of the increase in divorce. Paul Amato, in a comprehensive effort to examine the changing state of marriage, suggests that today’s marriages include both more that are happy and more that are profoundly unhappy. See supra Part I. Others discuss the breakup of “good enough” marriage, and place more of the blame on lack of commitment. See, e.g., Elizabeth S. Scott, Divorce, Children’s Welfare, and the Culture Wars, 9 VA. J. SOC. POL’Y & L. 95, 95‐106 (2001). 104 GRETCHEN LIVINGSTON & D’VERA COHN, PEW RES. CTR., CHILDLESSNESS UP AMONG ALL WOMEN; DOWN AMONG WOMEN WITH ADVANCED DEGREES 2 (2010), available at http://pewsocialtrends. org/files/2010/11/758‐childless.pdf. 105 Cf. Gaia Bernstein & Zvi Triger, Over‐Parenting, 44 U.C. DAVIS L. REV. (forthcoming 2011) (manuscript at 21), available at http://ssrn.com/abstract=1588246 (discussing the social trend of intensive parenting). 106 See generally Suzanne M. Bianchi, Maternal Employment and Time with Children: Dramatic Change or Surprising Continuity?, 37 DEMOGRAPHY 401 (2000) (analyzing the reallocation of mothers’ time); see also Mark Aguiar & Erik Hurst, Measuring Trends in Leisure: The Allocation of Time Over Five Decades 3 (Fed. Reserve Bank of Bos., Working Paper No. 06‐2, 2006), available at http://www.bos.frb.org/economic/wp/wp2006/wp0602.pdf (showing an average decline of eleven hours per week in women’s time spent on household production and an increase in family leisure time). 107 See, e.g., ALEXANDRA ROBBINS, THE OVERACHIEVERS: THE SECRET LIVES OF DRIVEN KIDS 215‐16 (2006).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
547
educated, women’s fertility depends to a much greater degree on men’s assistance.108 Family stability, in turn, depends on the ability to manage the competing demands of work and family, and to do so at a time when men and women’s expectations might not necessarily correspond to the types of jobs readily available in the modern economy.109 Adding to family tensions is increased mobility. Forty‐five percent of college graduates live in a different community from the community in which they attended high school, in comparison with 19% of high school graduates.110 While the ability to move increases employment opportunities, it further weakens the community networks that once supported young marriage. The cumulative result of these changes has been a substantial decline in family stability. Divorce rates began to rise as the young marriages of the fifties fueled the breakups of the seventies, and streamlined divorce procedures made dissolution faster and easier.111 Divorce rates leveled off only after they approached 1‐in‐2 marriages.112 Moreover, as the stigma associated with single parenthood declined, nonmarital births increased. Today, 41% of all American births occur outside of marriage.113 These changes—the increase in nonmarital sexuality, women’s workforce participation, greater use of contraception, higher rates of divorce, and single parenthood—appeared to affect everyone. While some parts of the country objected to what they saw as the breakdown of moral 108 The Pew Center found that while childlessness is up generally, women with advanced degrees were substantially more likely to have children in 2008 than in the early nineties, and their levels of childlessness were less than the levels of childlessness of women with only bachelor’s degrees. This is a major change from historical patterns. In the early nineties, women’s childlessness increased with every gain in women’s education, but by 2008 the largest increases in childlessness occurred among the women with the least education. LIVINGSTON & COHN, supra note 104, at 3; see also McLanahan, supra note 83, at 612‐14 (indicating that men assist with child care more in better‐educated families); Mikko Myrskylä et al., Advances in Development Reverse Fertility Declines, 460 NATURE 741, 741‐43 (2009). 109 PAUL R. AMATO ET AL., ALONE TOGETHER: HOW MARRIAGE IN AMERICA IS CHANGING 79 (2007); see also Adam Isen & Betsey Stevenson, Women’s Education and Family Behavior: Trends in Marriage, Divorce and Fertility 12‐14 (Nat’l Bureau of Econ. Research Working Paper No. 15725 Jan. 2010), available at http://bpp.wharton.upenn.edu/betseys/papers/Marriage_divorce _education.pdf or http://www.nber.org/papers/w15725 (observing that women with college degrees have experienced the greatest drops in divorce and are the happiest in their marriages). 110 BILL BISHOP, THE BIG SORT 133 (2008). 111 See supra notes 99‐103 and accompanying text (summarizing literature on the relationship between fifties marriage patterns and divorce). 112 See Isen & Stevenson, supra note 109, at 11‐14 (explaining changing divorce patterns). 113 D’VERA
COHN ET AL., PEW RESEARCH CTR., THE NEW DEMOGRAPHY OF AMERICAN MOTHERHOOD 1, 13 (2010), http://pewsocialtrends.org/2010/05/06/the‐new‐demography‐of‐ american‐motherhood/.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
548
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
values, by the nineties the changes in family practices appeared to be remarkably widespread. However, in the last ten years, new sociological studies present a very different picture of the consequences of these changes: the reemergence of family as a marker of class. V. Family Divergence: The Two‐Parent Family as the Province of the Elite By the late 1990s, scholars of the family were celebrating two noteworthy trends: divorce rates were finally leveling off and teen births were falling.114 The drop in teen births generated speculation about the possible causes—better economic times; increased abstinence efforts; the AIDS scare and a rise in the use of condoms; the advent of Norplant and other long‐acting injectibles—but other developments were mystifying.115 Scholars were particularly puzzled to find that as marriage rates fell and divorce rates plateaued, overall marital happiness seemed to remain about the same.116 Two influential studies have provided an answer: in the fifties, sixties, and seventies, the changes that affected American families seemed to affect the country as a whole, but in the mid‐eighties, different groups headed in opposite directions, with family stability improving for some and worsening for others.117 The good news, such as the leveling off of divorce rates, simply cloaked the fact that the country’s families were moving farther apart. Between 1990 and the early part of the twenty‐first century, the divorce and nonmarital birth rates of college graduates returned to the levels of the mid‐sixties.118 For everyone else, however, family stability continued to decline.119 The first significant study to call attention to the changes, by sociologist Steve Martin, assembled the figures showing the relationship between education and divorce.120 In a more comprehensive analysis, Sara McLanahan put these figures together with other data and argued that 114 For an analysis of the change in teen births, see John S. Santelli et al., Explaining Recent
Declines in Adolescent Pregnancy in the United States: The Contribution of Abstinence and Improved Contraceptive Use, 97 AM. J. PUB. HEALTH 150, 150, 152‐53 (2007). For the divorce rate, see McLanahan, supra note 83, at 612. 115 Santelli et al., supra note 114. 116 AMATO ET AL., supra note 109. 117 Id. 118 See McLanahan, supra note 83, at 612. 119 STEVEN P. MARTIN, RUSSELL SAGE FOUND., GROWING EVIDENCE FOR A “DIVORCE DIVIDE”?: EDUCATION AND MARITAL DISSOLUTION RATES IN THE U.S. SINCE THE 1970S, at 14, 34 fig.1 (2004), available at https://www.russellsage.org/sites/all/files/u4/Martin_Growing%20 Evidence%20for%20a%20Divorce%20Divide.pdf. 120 Id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
549
family form worsened the class divide in the United States.121 One of the most telling figures is the following: First Marriages Ending in Divorce Within 10 Years as a Percent of all First Marriages By Female Educational Attainment 40 35 30 25 4-Year College 20 Degree or More 15 No 4-Year College Degree 10 5 0 1970-1974 1975-1979 1980-1984 1985-1989 1990-1994 Year of First Marriage The striking thing about this chart is the divergence in the slope of the curves.122 For those married in the seventies, the better educated are less likely to divorce than others, but divorce rates are increasing for everyone, and the curves move in largely parallel directions. By the end of the seventies, however, the slopes of the curves began to change, with the divorce rates of the well educated dropping sharply, while the divorce rates for the rest of the population decline modestly. For those who married at the end of the eighties, the divorce rates of those without college degrees change direction and rise significantly, while they continue to decline for the well educated. The net result: by 2004, the divorce rates of college graduates were back down to what they were in 1965—before no‐ fault divorce, the widespread availability of the pill and abortion, or the sex 121 McLanahan, supra note 83, at 612. McLanahan concluded that:
Children who were born to mothers from the most‐advantaged backgrounds are making substantial gains in resources. Relative to their counterparts 40 years ago, their mothers are more mature and more likely to be working at well‐paying jobs. These children were born into stable unions and are spending more time with their fathers. Id. at 608. 122 June Carbone, Professor, Univ. of Mo.‐Kan. City Sch. of Law, The Hirsch Lecture at the
New England School of Law (Nov. 18, 2010) (deriving chart from Martin, supra note 119, at 34 fig.1) (slides on file with the New England Law Review and the author).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
550
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
revolution.123 The new strategy replicated the stable family patterns of earlier eras—but only for college graduates. Though less dramatic, the changes in the distribution in nonmarital births is also striking. Between 1960 and 1970, nonmarital births increased for everyone, and while the least educated experienced the highest overall percentages, the curves again moved in parallel fashion, suggesting similar rates of change.124 Between 1970 and 1990, the percentage of nonmarital births increased to almost half of the total for women without high school degrees, while peaking at less than 10% for college graduates.125 After 1990, however, the slopes of the curves diverge. For women college graduates and women without high school degrees, the percentages drop. For the 50% of women in the middle, they continue to increase.126 The clearest explanation of the changes in nonmarital births comes from the substantial drop in teen births—a drop overwhelmingly due to greater contraception. During the nineties, teen births fell substantially, they fell across the board, and they fell most for African‐Americans.127 Since almost all teen births are nonmarital, a high percentage of teen mothers do not have high school degrees even if they will receive them later, and a pregnancy often derails or postpones high school graduation. Therefore, a substantial decline in the number of teen births can affect the overall picture for women without high school degrees. A Guttmacher study also indicated that the drop in teen births, which occurred at the same time as a drop in the abortion rate, was overwhelmingly due to better contraception.128 Fourteen percent of the total change among teens aged 15‐ 19 could be attributed to abstinence, but the effect of increased abstinence was limited primarily to 15‐17 year olds.129 The other 86% of the drop was due to better contraception.130 Some of the teens who avoided giving birth before they graduated from high school might have simply postponed childbearing, adding to the increase in the nonmarital birth rates of high 123 See McLanahan, supra note 83, at 617. 124 Id. at 612 fig.1. 125 Id. 126 Id. 127 See Santelli, supra note 114, at 154 tbl.3. For an examination of contraceptive use by race,
see CTRS. FOR DISEASE CONTROL & PREVENTION, TEENAGERS IN THE UNITED STATES: SEXUAL ACTIVITY, CONTRACEPTIVE USE, AND CHILDBEARING (2002), available at http://www. cdc.gov/nchs/ data/series/sr_23/sr23_024FactSheet.pdf; KERRY FRANZETTA ET AL., TRENDS AND RECENT ESTIMATES: CONTRACEPTIVE USE AMONG U.S. TEENS, CHILD TRENDS 2 (2006), available at http://www.childtrends.org/files/contraceptivesrb.pdf. 128 Santelli, supra note 114, at 154. 129 Id. at 152. For 15‐17 year‐olds, 23% of the drop in teen pregnancies was due to greater abstinence and 77% to increased contraception. Id. at 154. 130 Id. at 154.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
551
school graduates in their twenties. Increased contraception for teens cannot in itself, however, explain the growing class‐based gulf in family form. McLanahan’s early analysis focused on a different clue: the age of family formation. The data she assembled indicated that from 1980 to 1990, the average age of mothers with children under five increased in a parallel fashion for everyone.131 During the nineties, however, college graduates continued to have children at even later ages, while the ages of mothers without college degrees remained flat.132 What does the age of family formation have to do with family life? Quite a bit, it turns out, but the causes may be multi‐directional. First, the age of childbearing itself reflects education. Women who complete graduate school are likely to begin childbearing later than high school drop‐outs, high school graduates, or those who only complete their bachelor’s degrees—no surprise here and not itself a cause of concern.133 Second, later age of marriage correlates with a lower likelihood of divorce and does so for different reasons today than in earlier eras. Teen marriages have always been risky, and some studies suggest that the increase in maturity from the teen years to the early twenties bodes well for the stability of relationships.134 Earlier studies, however, showed that an increase in the age of marriage from the early twenties to the late twenties conferred no greater protection from divorce.135 In 2009, however, Paul Amato showed a dramatic change. Looking at measures of divorce proneness rather than divorce rates, Amato’s research indicated that in 1980, the patterns in the older studies were true: marital stability increased with an increase in the age of marriage from the teens into the twenties, but the advantages of age leveled off after the early twenties.136 In 2000, however, every increase in the age of marriage produced a decline in divorce proneness all the way into the late thirties.137 The increase in the age of marriage, which in the nineties rose substantially for college 131 McLanahan, supra note 83, at 610 fig.1. In the seventies, however, it increased more for college graduates and did not change much at all for those without college degrees, indicating, as Goldin and Katz did, that college‐educated women may have been the first to use family planning to postpone family formation. Id.; see also Isen & Stevenson, supra note 109, at 7 (indicating that the age of marriage increased for college graduates, but not for the rest of the population). 132 McLanahan, supra note 83, at 612 fig.1. 133 See id. 134 June Carbone, Age Matters: Class, Family Formation, and Inequality, 48 SANTA CLARA L.
REV. 901, 930 n.138 (2008). 135 See id. 136 AMATO ET AL., supra note 109. 137 Id. “Divorce proneness” does not mean that the couple actually divorced but rather that they had discussed or considered divorce.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
552
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
graduates but not for anyone else, appears to play a much more important role in marital stability today. The reasons for the change in the age of marriage might be complex. Stéphane Mechoulan’s research provided some insight. He compared marriage and divorce rates in different states and found that divorce rates were the same across different legal regimes, whether or not the regimes permitted consideration of fault.138 He suggested, however, that states that made divorce easier also tended to produce later ages of marriage, and that age was a protective factor in marital stability. Using regression analyses to tease out the effects of different factors, Mechoulan found that the age of marriage had a small but statistically significant effect on the likelihood of divorce.139 The much bigger effects were the impact of selection effects. Today, college graduates are likely to marry other college graduates, so later age of marriage also provides greater certainty, as it is easier to determine who is going to be successful at 29 than at 21.140 Mechoulan summarized these as “search costs”; with greater marital fragility, engaging in a more extensive search for the right mate appears to pay off, but it lengthens the time spent searching.141 How a more extensive search pays off is another matter, however. In a thorough study of family relationships in 2009, Paul Amato found that several things changed that were likely to affect the class‐based nature of marital stability. First, he observed that the effect of financial stress had increased. Unsurprisingly, his data from 1980 found that those experiencing financial distress were more divorce prone than those who did not experience financial distress.142 By 2000, however, the effect was 138 Stéphane Mechoulan, Divorce Laws and the Structure of the American Family, 35 J. LEG.
STUD. 143, 143, 152 (2006). 139 Id. at 165. 140 A number of studies show that the highly‐educated have become more likely to marry each other. For a summary, see McCall & Percheski, supra note 98. Economists argue further that the greater the economic inequality among males, the larger the potential payoff for search efforts and thus the greater the incentives for later marriage. In empirical tests of this hypothesis, Loughran found that increases in male wage inequality, over time in geographically, educationally, and racially defined marriage markets can account for between 7% and 18% of the decline in marriage between 1970 and 1990 for white women but for considerably less of the decline for black women. Eric D. Gould & M. Daniele Paserman, Waiting for Mr. Right: Rising Inequality and Declining Marriage Rates, 53 J. URBAN ECON. 257, 279 (2002). Eric D. Gould and M. Daniele Paserman estimated that differences in male wage inequality can account for approximately 25% of the decline in marriage over the past few decades. Their findings hold across a variety of different educational groups and suggest that both men and women delay marriage in response to greater male inequality but not greater female inequality. Id. 141 See Mechoulan, supra note 138, at 164. 142 AMATO ET AL., supra note 109, at 132.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
553
magnified—those with financial distress experienced twice the divorce risk of those who were financially stressed in 1980, and those who were not financially stressed became even less likely to divorce.143 He also reported that almost all of those married in their twenties reported financial distress, even though, overall, fewer couples were in financial distress during the relatively prosperous period at the end of the nineties than in 1980.144 Second, he discovered that one of the factors that exacerbated the relationship between financial distress and divorce was women’s employment.145 For higher income families, there were two patterns that produced relatively low levels of divorce proneness. The first was a traditional one—a bread‐earning husband and a wife who worked outside the home part‐time or not at all. The second involved dual‐earner couples—both committed to full‐time employment. These couples spent relatively little time together but also experienced relatively little conflict.146 In contrast, among the least happy couples were those in which the wife preferred to work outside the home part‐time or not at all but needed to work full time because the family needed the income.147 Amato concluded that: [D]ual‐earner arrangements are linked with positive marital quality among middle‐class couples and with negative marital quality among working‐class couples. Although the additional income provided by working‐class wives helps . . . their families, these financial benefits come with a steep price in the form of greater marital tension, low job satisfaction, and a desire . . . to decrease hours of employment or return to . . . homemaking.148
Amato explained that these differences help explain one of the great mysteries in the studies of marital quality. Between 1980 and 2000, the average levels of marital happiness remained about the same.149 Amato concluded that in fact, the averages cloak substantial changes. During that period, the number of stable and unstable marriages increased.150 Couples reported spending less time together, with less conflict, fewer problems, 143 Id. 144 Id. 145 Id. at 138 (distinguishing between college graduate women in the professional and managerial ranks and less educated women). 146 Id. (concluding that the workforce participation of these women, which contributed to
economic security, has “generally beneficial consequences for marriages”). 147 Id. (concluding that “the labor force participation of working‐class wives,” without college degrees, adds to marital stress). 148 AMATO ET AL., supra note 109, at 139. 149 Id. at 132. 150 Id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
554
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
and greater stability.151 At the same time, the number of couples who were divorce prone also increased.152 At least part of the reason was the mismatch in expectations and gender roles. Both those who wanted traditional marriages and those who wanted dual‐worker marriages were doing well if their marriages corresponded to their expectations.153 Less educated women, however, were both more likely to prefer a traditional division of family responsibilities and less likely to be married to men who could earn enough to support them.154 Amato’s findings suggested that this mismatch was at least part of the explanation of the divergent divorce proneness in the nineties. Between 1980 and 2007, the only men whose earnings increased in real dollar terms were college graduates.155 Accordingly, families farther down the socio‐ economic ladder became much more dependent on women’s income in absolute terms.156 At the same time, the earnings of college‐graduate women increased more than for any other part of the population.157 This result might not only affect the economic well‐being of their families, but also the terms on which college‐graduate men and women understand 151 Id. 152 Id. 153 Id. at 137. Amato also found that holding conservative views about gender roles was associated generally with less marital happiness, less marital interaction, and more conflict. Id. at 167. Shared religious participation, however, produced increases in marital quality, and Amato found that as individuals joined fewer organizations of any kind, couples became more likely to belong to the same organizations. Id. at 215. 154 AMATO ET AL., supra note 109, at 138. Compounding these changes are changes in employment stability. Male employment stability, measured by changes in jobs, has steadily declined for most of the period since World War II. Women’s employment stability has increased through much of that period, and the implications of layoffs tend to be different for men and women. See generally Henry Farber, Is the Company Man an Anachronism? Trends in Long Term Employment, 1973‐2005, in THE PRICE OF INDEPENDENCE: THE ECONOMICS OF EARLY ADULTHOOD (Sheldon Danziger & Cecilia Rouse eds., 2008) (analyzing the incidence of long‐ term employment in the United States). 155 COHN ET AL., supra note 113, at 8. 156 Id. at 16. Families became more dependent on women’s income to maintain the same standard of living.. Id. The less education a woman has, however, the less likely she is to be in the labor market. See McLanahan, supra note 83, at 608. When looking at a husband’s education, however, the figures even out, with college educated men being the least likely to have a working spouse. COHN ET AL., supra note 113, at 16. 157 COHN ET AL., supra note 113, at 8, 16. According to the Pew Study, female college graduates saw their incomes increase by 30% between 1970 and 2009. Id. at 8. The increases in the seventies were negligible, however, and the bulk of the increase came between 1980 and 2000. Id. All women showed gains in the nineties, but from 2000 to 2007, only the incomes of college graduates showed any increase. Id. All men, in contrast, have shown steady declines in income since 1980, except for college graduates. Id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
555
their relationships.158 While the class‐based nature of changes in divorce has received relatively little attention, the increase in nonmarital births to poorer women has received considerably more interest. But then, most of the research has focused on the poorest women, starting with the Moynihan Report and the attention it brought to changes in the African‐American family.159 Today, scholars agree that the same patterns that characterized African Americans in the sixties describe all Americans; yet, the exploration of the reasons for nonmarital births still focused largely on the most “fragile families.”160 Perhaps the most common explanation for the increase in nonmarital births to poor women involves the idea that Sara McLanahan and Christine Percheski referred to as a “marriage bar,” defined as “the standard of living a couple is expected to obtain before they marry.”161 Some studies suggest that the greater the male income inequality in a community, the higher the number of couples that will fail to meet the marriage bar.162 McLanahan and Percheski, for example, explained that: [I]f we assume that the bar is a function of the median income of married couples, the distance becomes even greater as marriage becomes increasingly concentrated among high‐income couples. Thus, the decline in marriage among low‐income populations likely has a negative feedback effect by raising the bar even further.163
The idea is that the marriage bar is not an absolute standard—the 158 See generally Sara McLanahan & Christine Percheski, Family Structure and the Reproduction of Inequality, 34 ANN. REV. SOC. 257, 257‐76 (2008) (reviewing the claim that “family structure is an important mechanism in the reproduction of poverty and inequality”). 159 For a retrospective on the Moynihan Report in the Annals of The American Academy of Political and Social Science, see generally The Moynihan Report Revisited: Lessons and Reflections After Four Decades, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 6 (Douglas S. Massey & Robert J. Sampson eds., 2009). In their introduction, Massey and Sampson observed that “Moynihan’s core argument was really rather simple: whenever males in any population subgroup lack widespread access to reliable jobs, decent earnings, and key forms of socially rewarded status, single parenthood will increase, with negative side effects on women and children.” Douglas S. Massey & Robert J. Sampson, Moynihan Redux: Legacies and Lessons, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 6, 13 (2009). 160 See Frank F. Furstenberg, If Moynihan Had Only Known: Race, Class, and Family Change in the Late Twentieth Century, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 94, 95 (2009) (“Moynihan’s focus on race rather than class continues to dominate policy debates about the family to this day.”). 161 See McLanahan & Percheski, supra note 158, at 261. 162 Perhaps the most intriguing study along these lines is that of Gould and Paserman. See
generally Gould & Paserman, supra note 140 (discussing the relationship between “male wage inequality and female marriage rates within cities”). 163 See McLanahan & Percheski, supra note 158, at 261.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
556
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
minimum necessary to maintain a household—but a relative standard that ties marriage to the ability to “maintain a certain standard of living, which includes a house, a car, and stable employment.”164 The higher the median level of income in a community, the higher the minimum standard for marriage and the greater the income inequality in a region, the greater the number of couples who will never meet the standard.165 However, though this analysis has empirical support tying the level of marriage to greater income equality among males, it is not convincing as an explanation of why lower‐income women are willing to have children on their own rather than waiting for marriage. It is unconvincing for two reasons. The first involves the advantages of marriage. A man and a woman together can offer a child more advantages than the mother can offer the child on her own. The idea that they do not, simply because they cannot meet some artificial standard tied to the median income in a community, makes no sense. Amy Wax, commenting on the leading ethnographic studies of poor women’s marital decisions, observed that: The women . . . almost never complain about their men’s earning power. Rather, the book is replete with evidence that men’s antisocial behavior . . . is the main obstacle to matrimony. To be sure, these women’s accusations have an economic aspect: they accuse the men of being unwilling to grasp opportunities, work steadily, and spend wisely. . . . These women’s most vociferous complaints are reserved for men’s chronic criminal behavior, drug use, violence, and, above all, repeated and flagrant sexual infidelity. . . . These men’s sexual habits—and women’s complicity in them—produced conflict, jealousy, resentment, mistrust and tumultuous personal lives. . . . [These women] . . . ask for the basics of responsible male behavior . . . but upper‐middle‐class women now seem to get it far more often.166
Wax thus tied the decline of marriage to standards of behavior rather than standards of income and ultimately argued for more emphasis on individual responsibility. Sociologists, however, asked whether growing unemployment in turn affects standards of behavior. McLanahan and Percheski suggested that “[w]age inequality may also make men in the bottom half of the income distribution less attractive as marriage partners.”167 The male breadwinner role continues to define male success, 164 Id. 165 Id. 166 Amy L. Wax, Engines of Inequality: Class, Race, and Family Structure, 41 FAM. L.Q. 567, 590 (2007). 167 See McLanahan & Percheski, supra note 158, at 261.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
557
and the loss of both status and income that comes with lesser employment causes many men who cannot meet the expectations associated with the breadwinner role “to be deemed as failures by society, themselves, and their partners.”168 Indeed, Newsweek reported that the American Time Use Survey showed that “laid‐off men tend to do less—not more—housework, eating up their extra hours snacking, sleeping and channel surfing (which might be why the Cartoon Network, whose audience has grown by 10 percent during the downturn, is now running more ads for refrigerator repair school).”169 According to the same study, unemployed women spend twice as much time taking care of children and doing chores as men.170 Unemployed men are right behind alcoholics and drug addicts as the group most likely to beat their female partners.171 Wax and the sociologists may both be right: bad behavior by men, rather than low incomes per se, may be what makes low income men unsuitable marriage partners, but worsening employment prospects may exacerbate bad behavior. Still, the explanation may not be as simple as merely the decreased job prospects and income levels of low income men. The other part of the explanation may be the ways in which the men line up with women. Harvard sociologist Bill Wilson was among the most prominent to argue that the loss of employment in the rustbelt cities of the North had a major impact on African‐American marriage levels in the period when the nonmarital birth rate among blacks increased from a quarter to two‐ thirds.172 Critics, however, questioned Wilson’s argument, noting that marriage rates fell almost as much for employed as unemployed African‐ American men.173 The answer may be that increased unemployment exacerbates the match between marriageable men and marriageable women on multiple levels. First, as noted above, greater unemployment may produce less responsible behavior within the community generally, affecting the employed as well as the unemployed and making men less attractive partners. Second, if greater unemployment reduces the overall number of marriageable men, it may reduce the attractiveness of marriage for successful men. Rick Banks wrote a book on middle‐class African‐ American women in which he observes that, as a general rule, when 168 Id. 169 Tony Dokoupil, Men Will Be Men, NEWSWEEK (Feb. 21, 2009), http://www.news week.com/2009/02/20/men‐will‐be‐men.html. 170 Id. 171 Id. 172 See, e.g., WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW
URBAN POOR 88‐89 (1996). 173 PAUL OFFNER, BROOKINGS INST., WELFARE REFORM & BEYOND: REDUCING NONMARITAL BIRTHS 3 (2001), available at http://www.brookings.edu/es/wrb/publications/pb/pb05.pdf.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
558
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
women outnumber men in a marriage pool, marriage declines.174 The men at the top end of a marriage market may find that they have their choice of women and can play the field without promises of commitment, so their incentive to commit to a single woman declines.175 Third, as marriage options diminish and women rely more on their own resources, they are less inclined to marry the men who are available, particularly if those men are likely to be unfaithful or draw upon, rather than contribute to, family resources.176 The result may be that the number of men and women with shared expectations and commitment to the same marital terms decline. Economists argue that the result increases search costs. That is, as economic inequality among men increases, the benefits of a more careful search increase leading women to postpone marriage until they find the right partner.177 This argument, however, also has different implications for different social classes. Evolutionary analysis suggests that, all other things being equal, men prefer younger marital partners who are more likely to be fertile.178 Historically, well‐educated women who delayed marriage were at risk of the delay hurting their marital prospects, in part because, with younger average ages of marriage, all the “good guys” would be gone. 174 RALPH RICHARD BANKS, IS MARRIAGE FOR WHITE PEOPLE? (2011). 175 Cf. Gould & Paserman, supra note 140, at 279. Gould and Paserman, however, attempt to test this hypothesis and find that the level of male inequality of a city affects the marriage rates of all men, such that the same man, even if at the top or bottom of the income scale, becomes more likely to marry in a city with less male inequality. See id. They attribute the effect to women’s choices rather than men’s. Id. 176 For a discussion of the role of uncertainty on the attitudes of African‐American women, see Linda M. Burton & M. Belinda Tucker, Romantic Unions in an Era of Uncertainty: A Post‐ Moynihan Perspective on African American Women and Marriage, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 132 (2009). Burton and Tucker observe, for example, that African‐American women identified the following risks from romantic involvement:
[F]inancial (many had finally obtained some degree of financial stability and were concerned that monetary entanglements with another would deplete their resources), physical (older men were more likely to become infirm, require care, and become dependent), and psychological (they preferred a life of independence, finally free from the demands of others—something they had been denied . . .). Id. at 135‐36. Gould and Paserman, however, find that the effect of greater male inequality in depressing marriage rates remain, once the number of single men (and the presumably erratic behavior of single men), is controlled for. See Gould & Paserman, supra note 140, at 271. They also find that both an increase in women’s employment and a decline in men’s employment will decrease marriage within a given city. Id. 177 Gould
& Paserman, supra note 140, at 273; see Mechoulan, supra note 138, at 165 (concluding that with greater marital instability, couples search longer producing better sorting). 178 See Carbone, supra note 134, at 916.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
4/27/2011 7:59:14 AM
Unpacking Inequality and Class
559
Today, however, well‐educated men may prefer better‐educated women, and with both marrying later, investment in a woman’s education, career, experience, and earning potential may pay off not only in higher income, but in the ability to land a more desirable marriage partner.179 Accordingly, women may postpone marriage because they believe that their marital opportunities will improve with time. Studies confirm this effect, finding that more highly educated women today have become more likely to marry—and to marry better educated and higher earning men—than other women in society, and these women tend to marry at later ages.180 The payoff for longer searches, however, does not explain the rising number of women who will not marry at all. For less‐educated women, a longer wait is unlikely to increase marital prospects. For those who do not attend college, greater age is unlikely to enhance either attractiveness or earnings, and the birth of nonmarital children, particularly to another man, will further depress marital prospects. While the literature on the poorest women suggests that the mismatch with marriageable men provides a partial explanation,181 it cannot fully explain the relatively recent increases in non‐births to women, primarily in their early twenties, who are not poor. The research provides no comprehensive explanation, but it does suggest that two factors may be particularly important. The first is the relative power balance between men and women. As the Amato study showed, men and women who share egalitarian expectations and both work, do well; men and women with traditional expectations, where the husband fails to earn enough to support the wife, 179 See, e.g., Isen & Stevenson, supra note 109, at 10; Mechoulan, supra note 138, at 165‐66. 180 See COHN ET AL., supra note 113, at 5 (showing that marriage rates varied little by education in 1970, with female college graduates less likely to marry than non‐college graduates, while in 2007, female college graduates were substantially more likely to be married than those without college degrees). For a discussion of selection effects, see Gould & Paserman, supra note 140, at 279. 181 The Future of Children suggested that:
[T]he nationʹs swiftly rising nonmarital birth rate has many explanations—a cultural shift toward acceptance of unwed childbearing; a lack of positive alternatives to motherhood among the less advantaged; a sense of fatalism or ambivalence about pregnancy; a lack of marriageable men; limited access to effective contraception; a lack of knowledge about contraception; and the difficulty of using contraception consistently and correctly. Isabel Sawhill et al., An Ounce of Prevention: Policy Prescriptions to Reduce the Prevalance of Fragile Families, 20 FRAGILE FAMS. 133, 133 (2010), available at http://futureofchildren.org/ futureofchildren/publications/journals/article/index.xml?journalid=73&articleid=534§ioni d=3674.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
560
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
do not.182 Gould and Paserman’s study of the effect of income inequality on marriage found that: [M]arriage rates decline with higher education, higher wages for women, and demand shifts in favor of women; marriage rates increase with age, higher wages for men and a higher ratio of men to women. Overall, the results show that women get married less when their labor market prospects improve (relative to men), and they get married more when marriage market conditions improve and when labor market prospects for men are relatively better.183
The Pew study of the effect of increases in women’s earnings further showed that, where a husband earns more than a wife, the couple is equally likely to say that the husband (35%) or the wife (36%) makes the financial decisions for the household. When the wife earns more on the other hand, 46% say that the wife makes the decisions, in comparison with 21% indicating that the husband makes the decisions.184 Both results suggest that a change in the relative financial position of husband and wife has an impact on family relationships and particularly one on the power dynamic within the marriage. While some older work suggests that the well educated middle class is more flexible in its attitude toward gender roles, not enough research has been done to indicate how important this factor is in the class‐based changes in relationship stability.185 The second factor has to do with attitudes toward sex, contraception, and abortion. Before the sexual revolution of the sixties and seventies, access to contraception was skewed by class, and studies in the sixties showed that, while women above and below the poverty line wanted approximately the same number of children, women below the poverty line had almost twice the rate of unintended pregnancies and substantially more children.186 Today, the role of class in skewing reproduction is greater. The unintended pregnancies between those above and below the poverty line have increased from double to at least triple, and the disparities grew during the nineties, the period in which class disparities increased.187 These studies show that unintended pregnancies dropped 20% 182 See supra text accompanying notes 142‐53. 183 Gould & Paserman, supra note 140, at 269. 184 COHN ET AL., supra note 113, at 18. 185 Amato’s research, however, further confirmed that in today’s world more liberal attitudes toward gender roles increase marital stability and that one of the reasons is the increased importance of women’s labor force participation for family economic security. See supra notes 142‐53 and accompanying text. 186 See LUKER, supra note 90, at 57. 187 See Rachel Benson Gold, Rekindling Efforts to Prevent Unplanned Pregnancy: A Matter of “Equity and Common Sense,” 9 GUTTMACHER POL’Y REV. 2, 3 (2006).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
561
for those with college degrees, while they increased by 29% for high school dropouts and those below the poverty line.188 Moreover, abortion rates, which dropped considerably during the nineties, rose for the poorest women and women of color, which suggests either that a larger share of the pregnancies were unwanted or that poor women’s economic conditions became more desperate.189 Putting these figures together shows a distinctive class pattern. The better off—those with college degrees or income more than 200% above the poverty line—have embraced contraception and hold the line on single‐parent pregnancies. Their rate of unintended pregnancies has fallen dramatically, with 29 unintended pregnancies a year per 1000 women of childbearing age.190 In contrast, women below the poverty line have 112 unintended pregnancies per 1000 women in the same time period, a rate almost four times higher.191 Perhaps almost as striking, women whose income is 100‐200% above the poverty line have 81 unintended pregnancies per 1000 women, a rate more than double that of the better off women.192 Use of contraception—or perhaps of the more effective and expensive contraceptives that require a doctor’s prescription—appears to once again be a marker of class.193 Complementing the effect of contraception, however, is the role of abortion. The abortion rate for the well‐off women appears low, 13 per 1000 women of childbearing age compared to 42 per 1000 women below the poverty line, and 36 per 1000 for the middle group.194 The rate of 13 per 1000, when 29 per 1000 women have unintended pregnancies, however, means that almost half of the unintended pregnancies of the wealthier group end in abortion.195 In contrast, while poor women have the highest abortion rates, those abortions are a much smaller percentage of the unintended pregnancy rate (42/112 rather than 13/29).196 The middle group of women have abortion rates closer to the poorest group (36/81), though they have a much lower unintended pregnancy rate.197 These figures 188 See HEATHER D. BOONSTRA ET AL., GUTTMACHER INST., ABORTION IN WOMENʹS LIVES 26
(2006), available at http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf. 189 Rebekah J. Smith, Family Caps in Welfare Reform: Their Coercive Effects and Damaging Consequences, 29 HARV. J.L. & GENDER 151, 177 (2006). 190 See Gold, supra note 187. 191 Id. 192 Id. 193 See, e.g., Sawhill et al., supra note 181, at 137‐38. 194 Gold, supra note 187, at 3. 195 See id. 196 See id. 197 See id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
562
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
suggest that while abortion rates are low for the better off women, they are a critical part of the effort to hold the line on nonmarital pregnancies.198 For other women, the abortion picture is more complex. Studies consistently show that the disappearance of abortion providers in large parts of the country affects abortion rates and does so disproportionately for the poorest women.199 The poorest women exercise less agency about sex and reproduction, have less access to abortion where public funding and local facilities are not available, and express more fatalism about life chances generally.200 Abortion has become increasingly important for the poorest women, less in avoiding the first pregnancy than in preventing the birth of additional children they cannot afford.201 The open question is whether changing attitudes toward abortion have contributed to the increase in the nonmarital birth rate, particularly for white and Latina women in their twenties.202 If abortion has been instrumental in holding the line on nonmarital births for college graduates, opposition to abortion may contribute to the erosion of the stigma associated with nonmarital births, particularly for working class women in the middle of the income spectrum. In her 1984 study of abortion, for example, Kristen Luker found that pro‐life women were more likely than pro‐choice women to have only a high school education.203 Recent studies confirm that socioeconomic status remains a factor in attitudes toward abortion.204 Given the high rates of unplanned pregnancies in the United 198 See id.; see also Ross Douthtat, Op‐Ed., Red Family, Blue Family, N.Y. TIMES, May 9, 2010, http://www.nytimes.com/2010/05/10/opinion/10douthat.html?ref=opinion (arguing that abortion is critical to the success of the middle‐class model). 199 See, e.g., Rachel K. Jones et al., Abortion in the United States: Incidence and Access to Services, 2005, 40 PERSP. ON SEXUAL & REPROD. HEALTH 6, 6‐7 (2008), available at http://www. guttmacher.org /pubs/journals/4000608.pdf. 200 See Sawhill et al., supra note 181, at 133, 136‐37. 201 See Smith, supra note 189; see also Rachel K. Jones et al., Patterns in the Socioeconomic Characteristics of Women Obtaining Abortions in 2000‐2001, 34 PERSP. ON SEXUAL & REPROD. HEALTH 226, 228‐33 (2002) [hereinafter Patterns in Socioeconomic Characteristics of Women] (explaining that during the nineties abortion rates increased for the poorest women, while declining for the rest of the population, in large part because of the increased rate of unintended pregnancy). Abortion rates and availability, however, vary widely by region. See id. 202 National nonmarital birth rate statistics can be highly misleading if they fail to account for race, in part because the change in the rates occurred during different decades for different groups and in part because the increase resulted in an end to the stigma associated with the births rather than a more incremental process. For discussion of the increase among African‐ Americans and the causes, see CARBONE, supra note 9, at 79‐84, 95‐96. 203 See KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 195 (1984). 204 See, e.g., MATTHEW E. WETSTEIN, ABORTION RATES IN THE UNITED STATES: THE INFLUENCE
OF OPINION AND POLICY 71 (1996) (indicating that socioeconomic status is second only to
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
563
States,205 only some combination of abortion, adoption, or the shotgun marriage could hold the line on nonmarital births. Adoption rates have never recovered from their plunge after the legalization of abortion in the seventies, and the shotgun marriage has declined with the high divorce rates associated with marriages prompted by an improvident pregnancy.206 The significant decline in white abortion rates occurred during the same period as the increase in nonmarital births to white women in their early twenties, an increase concentrated largely among those without college degrees.207 While abortion and nonmarital birth rates are not closely related for the country as a whole, the role of abortion in changing attitudes among subgroups has not been comprehensively explored.208 religion in predicting attitudes toward abortion); WILLIAMS, supra note 4, at 196 (noting how the abortion debate is cast in class terms). 205 See, e.g., Suzanne Delbanco et al., Public Knowledge and Perceptions About Unplanned Pregnancy and Contraception in Three Countries, 29 FAM. PLAN. PERSP. 70, 70 (1997), available at http://www.guttmacher.org/pubs/journals/2907097.pdf (comparing the United States, Canada, and the Netherlands and noting that the United States has the highest rates of unplanned pregnancy); Nadine Strossen, Reproducing Womenʹs Rights: All Over Again, 31 VT. L. REV. 1, 3 (2006). 206 See Overview of Adoption in the United States, ADOPTION INST., http://www.adoption institute.org/FactOverview.html (last visited Jan. 17, 2011) (documenting decline in adoption rates after 1970, but observing that no comprehensive records have been kept since 1992). For a discussion of shotgun marriages, see for example, FRANK F. FURSTENBERG, JR. ET AL., ADOLESCENT MOTHERS IN LATER LIFE 30‐33 (1987) (reporting that marriages contracted during the 1960s to legitimize a child were highly likely to end in divorce). 207 During the nineties, for example, white abortion rates decreased. See Patterns in Socioeconomic Characteristics of Women, supra note 201, at 228. The aggregate figures, however, reflect a decline in the unintended pregnancy rate, a decline that is much greater for whites, and for the well‐educated. See id. at 226‐34. Without a breakdown by race, class, and region, it is difficult to distinguish causal effects. 208 In contrast, there is more extensive research on the impact of state policies related to the 1996 welfare‐reform laws on abortion and nonmarital birth rates, including claims that state policies restricting access to abortion lowered nonmarital births rates by decreasing rates of nonmarital sexual activity. See, e.g., Kimberly Kelly & Linda Grant, State Abortion and Nonmarital Birthrates in the Post‐Welfare Reform Era: The Impact of Economic Incentives on Reproductive Behaviors of Teenage and Adult Women, 21 GENDER & SOC’Y 878 (2007) (arguing that policies have incidental effects). This literature, which is controversial, does not address the differential impact, however, of the various policies on the welfare population versus the working class, nor does it provide a comprehensive state‐based racial breakdown. Some authors argue that the availability of contraceptives and abortion may increase nonmarital births by increasing sexual activity. Most studies find, however, that declines in abortion due to greater abstinence are much smaller than declines due to effective contraception. Cf. Santelli et al., supra note 114, at 152‐54. On the other hand, economists Akerlof, Yellin, and Katz have argued that the greater availability of contraception and abortion have affected the terms of intimate bargains, increasing the nonmarital birth rate. George Akerlof et al., An Analysis of Out‐of‐Wedlock Childbearing in the United States, 111 Q. J. ECON. 277, 279 (1996).
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
564
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
Putting the different pieces in this analysis together creates the following picture: in a manner that parallels the successful middle‐class developments of the nineteenth century, the college‐educated middle class has adopted a new family model. That model counsels investment in women as well as men; delay in marriage and childbearing; promotion of more egalitarian gender relationships that increase role flexibility; systematic use of contraception;209 and abortion as the fallback critical to holding the line on nonmarital pregnancies. These measures allow the successful women to devote substantial time and resources to their children, even as their hours of work increase.210 This new model—and the stable, two‐parent families that come with it—is increasingly beyond the reach of a large part of the rest of the population. This appears to be true because of the interactions of: declining opportunities for less skilled men; poorer matches between the available women and desirable men;211 less flexible attitudes toward gender roles; 209 Effective
use of contraception is a matter of habit, timing, and effectiveness. Better techniques make disciplined use less important, but these can be expensive and require access to a doctor. In addition, effectiveness requires beginning use before beginning sexual activity, and this in turn requires accepting either the sex or the use of contraception as permissible. Thus, the most effective programs make use of the pill a rite of passage for teens that starts before the teens begin to think about having intercourse with a particular boy. But see David B. Cruz, “The Sexual Freedom Cases”? Contraception, Abortion, Abstinence, and the Constitution, 35 HARV. C.R.‐C.L. L. REV. 299, 375 (2000) (“Even people that took care to use contraception could find their copulation leading to an unwanted pregnancy, since contraceptives, like the persons that use them, are not perfect.”). 210 See McLanahan, supra note 83, 607‐09. 211 Gould & Paserman observe that:
[C]hanges in male inequality may affect marriage rates simply due to the decisions of men in response to changes in their own wages. For example, as rich men get richer they may search less (due to higher search costs) or become more selective, and as poor men get poorer they may be less attractive in the marriage market. Thus, inequality may be causing declines in marriage simply by increasing the proportion of men at the tails of the wage distribution where marriage typically occurs at an older age. Gould & Paserman, supra note 140, at 258. Their research found that changes in the relative position of men and women in a marriage market did affect marriage rates, but that male inequality had a greater impact on the decisions of women in the market than on male search strategies. Id. at 279. In other words, greater male inequality increased the tendency of women to be pickier about marriage. In contrast, greater female inequality did not have the same effect on male behavior, nor did greater male inequality appear to affect well off men’s willingness to marry. Id. The study did not examine the impact on divorce rates. Id.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
565
class‐based differences in effective contraceptive use and access to abortion; different attitudes toward managing sexuality. In addition, intriguing research suggests that greater male inequality decreases overall female marriage rates in a manner that is independent of the class effects. That is, greater inequality in a region may make well‐off and less‐well‐off women less likely to marry.212 This picture of the changing American family is incomplete, and its causes are not fully understood. The close relationship between class and family structure, however, has become so pronounced as to be undeniable, and an impressive body of empirical research documents the harmful effect of this relationship on children.213 In her study of the African‐American family, Donna Franklin described the effect of growing rates of single‐ parent families as “ensuring inequality.”214 This is increasingly true of the United States as a whole.
CONCLUSION The idea of class that emerged with American industrialization combines a number of factors. This Article emphasizes three in particular. First, the analysis distinguishes the forces creating a large and accessible middle class from those forces producing either a dominant elite or an impoverished, unskilled underclass.215 While the forces affecting the status of the three groups—the elite 1%, the large middle, and the bottom quintile—almost certainly interact, the health and size of the middle class depends more directly on human capital investment than the well‐being and power of the other groups. Second, because the middle class critically depends on education and investment in children, middle class status reflects the role of gender and the family in channeling resources to the next generation to a greater degree than the status of the other groups.216 Third, class mobility, at least mobility into the middle class, depends in turn on access to the resources that make investment in children possible.217 212 Id. at 259. 213 See, e.g., Ron Haskins, Moynihan Was Right: Now What?, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 281 (2009) (summarizing negative effects of family instability on children). 214 See
generally DONNA FRANKLIN, ENSURING INEQUALITY: THE STRUCTURAL TRANSFORMATION OF THE AFRICAN‐AMERICAN FAMILY (1997) (exploring social forces that contribute to inequality between white Americans and African‐Americans). 215 See supra Parts I‐II. 216 See supra Part III. 217 See supra Parts IV‐V.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
566
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
The emergence of class‐based differences in family form thus threatens the well‐being of the middle class more generally and poses the risk of creating a large and unbridgeable gulf between those who can continue to realize the benefits of college education and well‐paying, skilled positions, and those who, even if they graduate from high school, community college, or technical programs, may continue to see their living standards erode. A large and relatively uncontroversial body of literature establishes the benefits of stable, two‐parent families for children.218 Those benefits include greater resources, as married parents enjoy significantly greater monetary resources than single parents; more parental time to spend on children; and greater residential and emotional stability.219 In addition, as the age gap widens between college‐educated parents and others, and class‐based differences in overall fertility increase, well‐off parents become better able to provide rich cognitive environments for young children.220 Increasing the class‐based gaps in performance even further are the deterioration of public schools in many areas of the country and the increasing cost of higher education, putting college completion beyond the reach of an increasing portion of the population.221 This analysis suggests a reinforcing cycle: greater inequality increases the class‐based differences in family form, which in turn increase class‐ based differences in the cognitive performance of the next generation, which in turn increase overall wage inequality and reduce the total, not just the relative, human capital investment in future Americans. To address the emerging class structure in American society means thinking of the relationship between gender, employment, education, class, and family in radically different ways. It suggests that family stability depends on recreating a sense of community in the larger society, as economic inequality may erode the well being of families in ways that go beyond the immediate effect of employment, tax, or education policies. Rebuilding the fabric of American life may thus require considering the effect of: Job Creation: The original Moynihan Report on the African‐American family focused on the debilitating effects of male unemployment on family stability. This analysis is still true. Examining policies that increase employment opportunities, particularly for less skilled men, should be the first priority.222 218 See, e.g., Haskins, supra note 213. 219 See McLanahan, supra note 83, at 611. 220 See id. at 609. 221 GOLDIN & KATZ, supra note 7 passim. 222 See generally The Moynihan Report Revisited: Lessons and Reflections After Four Decades, supra note 159.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
2011
Unpacking Inequality and Class
4/27/2011 7:59:14 AM
567
Minimum and Family Wage Laws: Most of the debate on the minimum wage has been cast in terms of the tradeoff between higher wages and fewer jobs. This Article suggests that the more important question may be whether higher minimum wages increase employment and family stability even if they decrease employment. That is, if the effect of such laws is to increase employment stability, or better the employment rates of older men at the expense of less skilled workers such as teens or recent immigrants, the effect may be beneficial even if it decreases the number of private sector jobs.223 Greater Family Assistance: While much of this analysis has focused on the declining status of less skilled men, children’s cognitive development depends on the well‐being of their caretakers. Targeting assistance with medical and daycare needs of the kind promised (but not always delivered) as part of welfare reform would cushion the impact of family structure on children.224 Education: The expense of college education is increasing and may increasingly be beyond the reach of many Americans.225 Skills Training: Community colleges have become increasingly important in matching new employees with the skills employers demand.226 Yet financing may be strained in the current economic environment. Increased Access to Contraception and Abortion: The class‐based nature of unintended pregnancy dramatically skews the composition of the next generation. The United States has higher fertility rates than much of the developed world only because it has dramatically higher rates of unintended pregnancies. 227 Reduce Inequality: Finally, greater family stability is likely to depend, for reasons that cannot be fully explained, on greater overall societal equality. This is likely to require not only bringing up the bottom groups, but also limiting the excesses of the top groups. While I have argued in this Article 223 For a review of the economic literature on the minimum wage, see generally DAVID NEUMARK & WILLIAM L. WASCHER, MINIMUM WAGES (2008), which updated revisionist literature showing that increases in the minimum wage did not necessarily decrease employment and concluding the more recent studies show a negative impact on employment. For a different approach, see Noah D. Zatz, The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments?, 2009 U. CHI. LEGAL F. 1, 1, which argues that the minimum wage is a matter of basic human rights. 224 See,
e.g., MAXINE EICHNER, THE SUPPORTIVE STATE: FAMILIES, GOVERNMENT, AND AMERICAN’S POLITICAL IDEALS (2010). 225 For a more complete analysis of education in the United States, see generally GOLDIN & KATZ, supra note 7. 226 For a more expansive account, see generally CAHN & CARBONE, supra note 87, at 195‐97. 227 For a more expansive account, see id. at 8.
CARBONE FINAL_527‐568.DOC (DO NOT DELETE)
568
New England Law Review
4/27/2011 7:59:14 AM
v. 45 | 527
that the two issues are distinct—the weakening position of the working class is important for reasons that go beyond the advantages of the top 1‐ 2% of the population—they are related. The degree of income inequality in a society appears to affect the political system, and it certainly affects the distribution of political and economic power.228 Increasingly, however, the case is being made that it also affects our communities, our families, and our lives.229 The effects of the reemergence of class as an important component of American lives are likely to be pernicious ones.
228 See, e.g., THOMAS FRANK, THE WRECKING CREW: HOW CONSERVATIVES RUINED GOVERNMENT, ENRICHED THEMSELVES, AND BEGGARED THE NATION 269 (2008) (arguing that economic inequality inevitably brings political inequality). 229 See, e.g., ROBERT H. FRANK, FALLING BEHIND: HOW INEQUALITY HARMS THE MIDDLE CLASS (2007).