Excerpted From: Jacob Franklin Greene, The Great “White” Way: Reconsidering Comprehensive Color-conscious Casting Plans Through Affirmative Action, Commercial Speech, and Statutory Amendment, 11 Belmont Law Review 527 (Spring, 2024) (358 Footnotes) (Full Document)

JacobFranklinGreeneBy the end of 1880, Brush arc lamps were beginning to illuminate the streets of Midtown Manhattan, making Broadway one of the first electrically lighted streets in the United States. After basking in the radiance of these glowing lamps one February evening in 1902, Sheppard Friedman, a writer for the New York Morning Telegraph, coined a new nickname and dubbed Broadway “The Great White Way.” As twinkling theater marquees supplemented the arc lamps along the streets of Midtown Manhattan, the nickname continued to prosper as all the lights of the theater and more “snapped on” every day at dusk. For over a century, these lights have dazzled the night sky of New York's theater district. Broadway's fabled bright lights have made “The Great White Way” an integral part of the American cultural landscape and, perhaps more importantly, the center of American theater.

Though truly just a street, Broadway represents theater's intersection between art and commerce. Its artistic prowess stems from vivid theatrical imaginations that experiment with what is possible on stage in varying attempts to push the art form forward. Aside from artistry, Broadway also serves as a strong commercial industry that contributed about $12.6 billion to the New York economy in the 2018-2019 season. Broadway also supports about 12,600 direct jobs and 74,500 indirect jobs in New York City. Accordingly, the simple yet delicate balance for the world of Broadway theater remains developing “good art” while delivering a strong economic impact. Part of maintaining that balance requires understanding what American audiences want to see when they go to the theater.

A great many plays and musicals in the theatrical canon focus on the illustrious imagery of the American Dream, a predictably appealing topic. As a result, dramatic literature, musicals in particular, assume an “All-American” quality, and often, that quality can be more exclusive than inclusive. While one theater historian claims that Broadway is a “cultural Ellis Island,” another scholar, Warren Hoffman, contends that nonwhite groups “have not been granted full access to creating Broadway shows, let alone succeeded in putting fair representations of themselves on stage.” This lack of access presented by Hoffman is visible on stage and exemplified in the disparity between the amount of white actors versus nonwhite actors cast in the New York theater season.

Bearing that in mind, the irony of Mr. Friedman's use of a color to fabricate Broadway's infamous nickname is not lost. Because of Broadway's history of racial inequality and underrepresentation, some see Mr. Friedman's nickname as all too emblematic of the industry's standard of discrimination. In addition to indicating discriminatory behavior, Mr. Friedman's nickname can also be seen as intimating current casting practices: use of color descriptors. As discussed below, theatrical casting overtly focuses on race, raising serious questions about how current practices would fare against antidiscrimination laws.

This Note discusses the theatrical casting process from publishing a breakdown through audition day type outs and how this process exposes productions, theater companies, and Actor's Equity Association (“AEA”) to potential liability. Part I provides a background on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, as these are the federal antidiscrimination laws under which a lawsuit is most likely to arise. Part II explores the language of breakdowns, defines the concept of theatrical typing, and discusses the two predominant methods the theater industry frequently utilizes in casting shows. Likewise, Part II examines two frequent, often overlooked, issues facing the theater industry right now: publishing racially preferential casting breakdowns and typing as a form of segregation.

Part III discusses potential ways in which producers may try to shield productions from liability. Part III first analyzes the inefficacy of affirmative action policies and whether current casting methods fit squarely within the contours of affirmative action. This section then considers breakdowns and typing in the context of the First Amendment as commercial speech and artistic expressive conduct. Finally, Part III addresses Bona Fide Occupational Qualification arguments and the merits of statutory amendments that would codify current practices.

As possible solutions, Part IV explores two potential statutory modifications that would allow the theater industry to engage in race-conscious hiring. This proposed qualified exemption would create a burden-shifting test that would enable a challenger to recover against a production or theater company in instances of legitimately invidious racial discrimination in casting. Part V briefly concludes.

Ultimately, while color-conscious casting is the theater industry's preferred casting method, a comprehensive color-conscious casting program that encompasses casting from the moment a casting breakdown is published is not feasible under the law. The current form of breakdowns precludes color-conscious casting from being an affirmative action plan because it necessarily excludes people of other races, and the First Amendment does not protect breakdowns because they are an illegal form of commercial speech. However, the part of color-conscious casting focusing on typing has been accepted as a form of protected expressive conduct. The theater industry's best way forward is through a statutory exemption that codifies existing casting practices and allows the industry to advertise racially preferential breakdowns.

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Understanding color-conscious casting requires acknowledging that these plans are comprehensive and include more than simply hiring an actor because of the actor's race. It includes publishing preferential breakdowns and utilizing typing as a means of separating and eliminating applicants. 4 As noted above, such comprehensive plans are currently illegal. 5

Color-conscious casting, with respect to both typing and breakdowns, fails as an affirmative action plan because such plans necessarily trammel the rights of actors of different racial backgrounds. 6 However, after Claybrooks, typing enjoys the protections of the First Amendment as “part and parcel” of the casting process. 7 Nevertheless, the First Amendment does not exculpate breakdowns because such speech is “illegal commercial activity.” 8

Absent invidious discrimination, the theater industry should have unfettered discretion not only to hire whomever they choose but also to exclude certain people from auditions, even if purely from a desire to conserve resources. Breakdowns that specify all the characteristics that a production is seeking gives the theater industry that power. Thus, the most tenable action that the theater industry can take to protect its current hiring process is to seek a statutory amendment exempting the theater industry from certain provisions of Title VII and § 1981. Despite a lack of actors challenging these provisions, Congress should be obliged to codify existing practices.

Today, Mr. Friedman's nickname, “The Great White Way,” is highlighted as an emblem for its racial undertones, but the nickname holds more power than that. “The Great White Way” is really the blueprint for the theater industry on how to use a color descriptor.

Juris Doctor candidate, Belmont University College of Law, 2024; B.F.A., The Hartt School at the University of Hartford, 2021.