Articles, Chapters, and Papers in Progress

 

Published & Forthcoming

Berrey, Ellen. 2018. "Social Enterprise Law in Action: The Organizational Characteristics of U.S. Benefit Corporations." Transactions: The Tennessee Journal of Business Law 20: 21-114

 The benefit corporation is now the most widely adopted innovation in state corporate law in nearly two decades, as thirty-three states and the District of Columbia have passed legislation enabling the formation of benefit corporations. In these states, mission-driven for-profit firms can adopt the benefit corporation legal form to protect directors from liability as they pursue both a social purpose and private profits.Despite scholarly and political interest, little is known about the firms that incorporate as benefit corporations. This Article draws on an innovative national empirical study of benefit corporations, the first of its kind, to understand how business owners are using social enterprise law. The Article provides the most comprehensive count of benefit corporations available and original, data-driven analysis of benefit corporations’ national dynamics and organizational characteristics. The findings reveal that at least 7,704 benefit corporations have been formed since 2010, with Oregon, New York, Nevada, Delaware, and Colorado home to most. The field is highly varied, but there is a lot of inactivity and a substantial portion of benefit corporations are not evidently delivering any social or environmental benefits. Of the firms with an online presence, 71% do not describe themselves as benefit corporations, contradicting proponents’ assertions that the legal status provides market differentiation. These findings suggest that benefit corporation legislation serves a subset of firms, yet it falls short of its transformative promise to upend the prevailing model of shareholder supremacy. Statutes are not well tailored to new, small, privately held businesses, and lack of oversight enables inappropriate firms to become and remain benefit corporations. 

Berrey, Ellen. forthcoming. "When Liberal States Bite Back: The Micro-Politics of Culture and the Far Right Opposition to U.N. Agenda 21." In Culture and Order in World Politics: Diversity and Its Discontents Eds. Andrew Phillips and Christian Reus-Smit. Cambridge University Press. (contact me for a copy)

In the early 2010’s, as the right-wing populist Tea Party movement swelled across the United States, some activists set their sights on local sustainability planning. They cited a variety of reasons for opposing local governments’ proposals to curb sprawl and pollution, but many pointed to an unexpected adversary: Agenda 21, a voluntary sustainable development initiative of the United Nations. According to these political operatives, U.N. Agenda 21 is a sinister plot masterminded by totalitarian one-world government and implemented through land-use planning. Under a so-called green mask of environmentalism, the United Nations is purportedly usurping American sovereignty and the property rights and freedom of the American people. This chapter uses the case study of the anti-Agenda 21 mobilization to examine how the meaning of international order is formulated through local identities and culture and to identify the political consequences of that meaning-making. This case serves as a petri dish for connecting populist-nationalist politics at the community-level within the United States to the international arena. While many analysts have discussed the ways in which liberal internationalism is threatened by an illiberal world—by the rise of non-Western great powers, the spread of transnational religious insurgencies, the resurgence of authoritarianism—that emphasis neglects the cultural transformations taking place in America’s liberal heartland.T his chapter demonstrates the significance of the micro-politics of culture within the global hegemon. Through meaning making practices, anti-Agenda 21 activists associate the international order with locally salient issues that may appear, to the outsider, completely irrelevant—namely, land use planning by local governments. These political actors present coordination of global activity by a central organizing body as a threat to American freedom. In doing so, they reject linchpins of the liberal hegemonic project: global institutions and norms of global cooperation. 

Berrey, Ellen. 2018. “Is Diversity Racial Justice? Affirmative Action in Admissions and the Promises and Perils of Law.” In Challenging the Status Quo: Diversity, Democracy, and Equality in the 21st Century, Eds. Sharon Collins and David G. Embrick. Brill. 

This reader-friendly piece is written for college students, the educated public, and sociologists alike. It provides an overview of what affirmative action is, how law shapes it, and how universities have responded to legal changes. It draws on different sources legal doctrine, my ethnographic-historical study of affirmative action and the Gratz and Grutter litigation at the University of Michigan, my analysis of diversity discourse at other universities, and insights from socio-legal theories of lawto explain two key themes. First, over the course of 35 years, law has established the official terms of debate over race-conscious college admissions policies: colorblindness v. diversity. Opponents of the policy denounce it in the name of colorblindness while defenders champion the policy for creating diversity. Arguments for remedying racial injustice have been silenced in court. Likewise, legal doctrine has limited—but not (yet) altogether ended —colleges’ ability to give some favor to students of color in the admissions decision. Second, administrators at many selective colleges and universities have adopted "diversity" as an identity for their institutions. That identity symbolizes their values and, at least superficially, defines their actions. Diversity, as both legal doctrine and an organizational identity, affirms the cause of racial minority inclusion. Yet, the actions taken in its name usually fail to address the social foundations of racial inequality.

Hirschman, Dan and Ellen Berrey. 2017. "The Partial Deinstitutionalization of Affirmative Action in U.S. Higher Education, 1988-2014." Sociological Science. 4:449-68.

Since the 1990s, affirmative action opponents have targeted colleges’ and universities’ race-conscious admissions policies and secured bans on the practice in eight states. Although scholarly and media attention has focused on these dynamics at a handful of elite institutions, little is known about race-conscious admissions across the broader field of higher education. We provide a descriptive, quantitative account of how different types of colleges and universities responded to this political context. Through analysis of almost 1,000 selective colleges and universities, we find a dramatic shift in stated organizational policy starting in the mid-1990s. In 1994, 60 percent of selective institutions publicly declared that they considered race in undergraduate admissions; by 2014, just 35 percent did. This decline varied depending on status (competitiveness) and sector (public or private). Race-conscious admissions remain the stated policy of almost all of the most elite public and private institutions. The retreat from race-conscious admissions occurs largely among schools lower in the status hierarchy: very competitive public institutions and competitive public and private institutions. These patterns are not explained by implementation of state-level bans. We suggest that the anti–affirmative action movement had a diffuse impact whose effects varied across different strata of American higher education.

Hirschman, Dan, Ellen Berrey and Fiona Rose Greenland. 2016. "Dequantifying Diversity: Affirmative Action and Admissions at the University of Michigan." Theory & Society 45(3): 265-301.

To explore the limits of quantification as a form of rationalization, we examine a rare case of dequantification: race-based affirmative action in undergraduate admissions at the University of Michigan. Michigan adopted a policy of holistically reviewing undergraduate applications in 2003, after the U.S. Supreme Court ruled unconstitutional its points-based admissions policy. Using archival and ethnographic data, we trace the adoption, evolution, and undoing of Michigan’s quantified system of admissions decision-making between 1964 and 2004. Analysis of this rare case reveals conditions under which quantification’s ability to buttress the decisionmaking authority of bureaucrats is weakened. In a context in which opponents of the system had legal avenues to engage a powerful outside authority, three internal features of the University’s quantified admissions policy contributed to its demise: its transparency, the contestedness of the categories it quantified, and the existence of qualitative alternatives. Our analysis challenges the presumed durability and inevitability of quantification by demonstrating its potential modes of failure.

Berrey, Ellen C.  2015. “Making a Civil Rights Claim for Affirmative Action: BAMN’s Legal Mobilization and the Legacy of Race-Conscious Policies.”  Du Bois Review: Social Science Research on Race 12(2): 375-405. 

The politics of affirmative action are currently structured as a litigious conflict among elites taking polarized stances. Opponents call for colorblindness, and defenders champion diversity. How can marginalized activists subvert the dominant terms of legal debate? To what extent can they establish their legitimacy?  This paper advances legal mobilization theory by analytically foregrounding the field of contention and the relational production of meaning among social movement organizations. The case for study is two landmark U.S. Supreme Court cases that contested the University of Michigan’s race-conscious admissions policies. Using ethnographic data, the paper analyzes BAMN, an activist organization, and its reception by other affirmative action supporters. BAMN had a marginalized allied-outsider status in the legal cases, as it made a radical civil rights claim for a moderate, elite-supported policy: that affirmative action corrects systemic racial discrimination. BAMN activists pursued their agenda by passionately defending and, at once, critiquing the university’s policies. However, the organization’s militancy remained a liability among university leaders, who prioritized the consistency of their diversity claims. The analysis forwards a scholarly understanding of the legacy of race-conscious policies.

 

Berrey, Ellen. 2014. “Breaking Glass Ceilings, Ignoring Dirty Floors: The Culture and Class Bias of Corporate Diversity Management.” American Behavioral Scientist 59(2): 347-70.

Research on workplace inequality focuses largely on gender and racial disparities at work and contributing factors, while those who study diversity interventions tend to ask how these might be remedied. This article takes a different tack, asking the following: What ideals and cultural assumptions about social progress undergird workplace diversity programs, and with what consequences? Drawing from neoinstitutionalism and workplace ethnography, I examine diversity management in a multinational company based on a year of field research. At this company, diversity programs are for high-status women and people of color. Findings advance the study of workplace inequality and, more generally, the relational study of meaning making in real-life institutional contexts. They show that diversity management programs attempt to minimize gender and racial boundaries by codifying egalitarian ideals in organizational structures, and those definitions can reify class-based hierarchies. The findings also push social scientists to conceptualize inequality and equality as cultural constructs and to consider the biases of scientific measurements of inequality.

 

Berrey, Ellen C., Steve G. Hoffman, and Laura Beth Nielsen. 2012. “Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation.” Law & Society Review 46(1): 1-36. 

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public’s perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants’ perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in-depth interviews with defendant’s representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants’ representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. 

 

Readers can hear the data in respondents’ own voices by listening to online audio recordings of the lengthy quotations. From the pdf, click the hyperlink for the name of the person quoted and you will be directed to the recording on the article's web site. Or, go directly to www.americanbarfoundation.org/research/Civil_Rights_in_their_Own_Voices0.html

 

 

Berrey, Ellen C. 2011. “Why Diversity Became Orthodox in Higher Education, and How It Changed the Meaning of Race on Campus.” Critical Sociology 37(5): 573-96.

Using qualitative data about University of Michigan between 1965 and 2005, this article shows how administrators’ diversity discourse and programs have defined race as a cultural identity, expressed through interaction, which provides instrumental benefits. It also explains three major reasons why, starting in the mid-1980s, university administrators adopted this racial orthodoxy of “diversity”: to signal compliance with—and also to redefine—law and institutional norms while still practicing race-based affirmative admissions; to frame inclusion in more complex terms than a racial binary or numerical representation amidst growing campus multiculturalism; and to market the university, especially to white students. The article advances racial formation theory by developing the concept of a racial orthodoxy. It shows that diversity discourse and programs have sometimes advanced the goal of racial minority inclusion, but at the cost of downplaying problems of racial inequality and misrepresenting racial minorities’ campus experiences. 

 

 

Berrey, Ellen C. 2009. “Sociology Finds Discrimination in the Law.” Contexts 8(2): 28-32.

REPRINTED The Contexts Reader, 2nd ed. Eds. Doug Hartmann and Chris Uggen. 2011.  

NOMINEE Best Feature Article, Claude Fischer Award for Excellence in Contexts, 2010.

New findings from sociologists who study employment discrimination help explain why workplace inequalities persist despite the civil rights reforms of the U.S. Civil Rights Act and other subsequent laws. This profile of a research group working in the area further points to both the serious limitations and potential payoffs of using the law as a strategy for promoting equality.

 

 

Nelson, Robert L., Ellen C. Berrey, and Laura Beth Nielsen. 2008. “Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences.” Annual Review of Law & Social Science 4 (December): 103-22.

Legal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a “perpetrator” model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that documents the pervasiveness of unintentional bias and the persistence of organizational processes that generate workplace discrimination. This narrow legal conception, coupled with a system of employment discrimination litigation that emphasizes individual claims and individual remedies, fails to support the organizational approaches that are most promising for redressing workplace discrimination. We review the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination, and the impact of equal employment law on organizations. We conclude by discussing the reasons for and implications of this divergence between law and social science.

 

 

Berrey, Ellen C. 2005. “Divided over Diversity: Political Discourse in a Chicago Neighborhood.” City & Community 4(2): 143-170. 

HONORABLE MENTION Graduate Student Paper Award, American Sociological Association Community and Urban Section, 2004

 

In a Chicago neighborhood made up of different racial and economic groups, nearly everyone claims to value diversity. Yet, this powerful and plastic symbol can influence political activity in opposite directions. An ethnographic study of the neighborhood shows how three different groups—white real estate professionals and politicians, white progressive organizers, and black low-income housing advocates—deploy diversity. It presents three key findings: (1) mixed-income housing often becomes a proxy for diversity; (2) the diversity concept can support progressive politics while downplaying certain racial and class disparities; and (3) a focus on neighborhood diversity can obscure issues that poor people care about, including tenants rights. By providing a microlevel perspective on diversity discourse, these findings demonstrate how a shared symbol can both illuminate and veil fundamental disagreements over race, class, inequality, and gentrification in cities today.

 

 

Berrey, Ellen C. 2004. "The Drive for Diversity." Contexts 3(1): 60-61.

An ethnographic field note on University of Michigan activists as they organize a bus caravan to demonstrate in favor of affirmative action in Washington, DC, on the eve of the 2003 U.S. Supreme Court oral arguments on Gratz v. Bollinger and Grutter v. Bollinger. 

 

 

In Progress

Prabhdeep Kehal, Daniel Hirschman, and Ellen Berrey. “When Colleges Drop Affirmative Action: Admissions Policies and Racial Demographic Enrollments at Selective U.S. Institutions, 1990-2016.” Under revision.

Scholarship on elite American colleges has identified the rise and persistence of a “diversity imperative” – an institution’s perceived need to enroll racially heterogeneous student bodies to maintain its status in the field. At the same time, a significant proportion of selective institutions have stopped considering race in admissions. To understand the relationship between affirmative action and enrollment, we analyze enrollment trends by race at 973 competitive institutions in states without affirmative action bans from 1990-2016. We find that considering race is associated with an increase in Black and Latinx enrollments at more competitive institutions. At less competitive schools, considering race is associated with a decreasein Black and Latinx enrollments, and an increasein White and Asian/Pacific Islander enrollments. The results indicate that the relationship between affirmative action in admissions and enrollment demographics varies by institutional competitiveness; considering race does not necessarily translate into higher Black or Latinx enrollments or lower White and API enrollments.