But it turns out the impact may be less than either advocates or critics of the new rules imagine.
The Washington Post reviewed the past 15 years of best picture winners, dating back to 2005’s “Crash,” to see how much the new rules would change the landscape if those films came out now. The vast majority of winners — 73 percent — would have met the criteria without altering any casting practices or crew hires. Others could have done so with relatively minor changes.
The criteria are complicated, but they basically require that two of four elements be met: A) that a film’s story, lead actor or ensemble prominently feature underrepresented groups; B) that those working behind the scenes do the same; C) that the production include paid internships and training for underrepresented groups; and D) that a movie’s release team have “multiple in-house senior executives” from among underrepresented groups.
Underrepresented is defined as women, people of color and those from the LGBTQ+ or differently abled communities, though some categories have requirements only for people of color.
The message communicated by the academy Tuesday night was clear: Having spent years diversifying its voting body, Hollywood’s most prestigious organization now wanted to influence the movies that body voted on. The news immediately met with praise from many liberal critics of Hollywood who say the academy has historically not done enough to encourage diversity, and a backlash from those who said it amounted to a form of social and artistic legislation.
But publicly available information shows that most winners of the past decade and a half would have been vaulted into eligibility simply by meeting the first two standards: the forward-facing areas of actors and themes, and the behind-the scenes realms of crew and department heads. At least 11 of the past 15 winners met those two standards without question and would have been eligible to compete.
They include many recent winners, such as the 2020 trophy-taker, “Parasite,” and the 2017 prize-getter, “Moonlight.”
Some movies make it easily: “Crash,” with its themes of race and an African American producer in Don Cheadle would have had no problem. Others, such as “Spotlight,” about the Boston Globe’s investigation of the Roman Catholic Church, could qualify because its focus on sexual assault victims would probably be seen as centering on an underrepresented group.
Curiously, the 2019 winner, “Green Book,” about an interracial friendship between a Black jazz pianist and his Italian American driver and body guard, meets the standards, but not easily; most of its department heads are white, though Kris Bowers, who is Black, served as its composer.
The only four winners that would present potential challenges because they did not meet the criteria of A (in front of the camera) or B (behind the camera) are: “Argo” (the winner in 2013), “The Artist” (2012), “No Country for Old Men” (2008) and “The Departed” (2007).
Here is how they would have been adjudicated under the new rules:
The movie would meet B thanks to a number of women as department heads and Rodrigo Prieto, a Mexican-born cinematographer, holding the camera. But with a heavily male lead cast and very few people of color in the ensemble, the movie would appear to strike out on the A requirements. Producers could argue that the main character, CIA officer Tony Mendez, of partial Mexican ancestry, gives it a person of color, though he was played by Ben Affleck. It could, alternatively, be argued that its Iran setting gives it a story line or theme centered on an underrepresented group.
‘The Artist’ (2012)
The silent film out of France about period Hollywood would have little trouble with A, thanks to a high proportion of women in the ensemble cast, including Bérénice Bejo and Penelope Ann Miller. But B could pose a challenge; a review of the 14 departments did not immediately reveal a person known to be of color. Producers could argue that women were 30 percent of its essential crew, an argument that would depend on how that crew was counted.
‘No Country for Old Men’ (2008)
The Coen brothers movie about a killer on the loose on the United States’ southern border would be fine on the ensemble count but would face a hurdle on B, with no known people of color as department heads. The crew could make the difference, especially if producers could argue they staffed the movie with many people of Mexican descent for the scenes shot in Mexico. Still, the movie highlights a potential snag: White filmmakers who like to serve in multiple key roles, as do the Coens, frequently write, direct, produce and edit their own films.
‘The Departed’ (2007)
Based on a Hong Kong hit and featuring the much-decorated Thelma Schoonmaker as editor, the film takes care of B without any issues. But with an overwhelmingly White male cast and its plot of police infiltration of an Irish gang, the Martin Scorsese film could run into obstacles with A, the requirement for underrepresented groups in front of the camera. The movie’s challenges suggest that the new rules could trip up films dealing with White masculinity. “The Irishman,” Scorsese’s mob drama that was nominated but did not win this year, would have faced similar hurdles given its principal White male cast and similar non-diversity-related themes.
Those on both sides of the debate Tuesday often came from within the film business, though among the seven people The Post contacted (four in favor, three opposed), none would go on the record, citing the issue’s sensitivity.
Conservative celebrities also weighed in quickly. Kirstie Alley, who has been vocal in lambasting Hollywood for its alleged liberalism, offered a stream of tweets criticizing the move.
“Can you imagine telling Picasso what had to be” in his paintings, she asked. “You people have lost your minds.” She called the move a “disgrace to artists everywhere.”
The changes could also face legal challenges. Attorneys say that under the Civil Rights Act and the 1978 Supreme Court decision in Regents of the University of California v. Bakke, race can be a factor in an institution’s eligibility requirements but quotas are not allowed. This presents a problem for any of the hard percentages set by the academy, experts said.
“The law is very clear on what organizations can do: They can take into account a wealth of circumstances, but those circumstances cannot be a determining factor,” said Sky Moore, a prominent entertainment lawyer and partner at the Los Angeles firm of Greenberg Glusker. “You cannot have quotas, and these appear to be quotas.”
Moore also cited California’s Unruh Act, which prohibits discrimination for all groups, and said the policy could face a challenge on those grounds, too.
Even bypassing A and B to satisfy C and D would be an issue, he said: “Once you say ‘multiple’ executives,’ you’re saying two, and that’s a quota.” He added that lawsuits, while unlikely from a mainstream Hollywood studio or filmmaker, could come from other quarters: “I can see conservative groups lining up and suing immediately. And they’d have a good chance” of winning. Such a lawsuit, he said, could seek damages as a result of a film’s disqualification.
Awards consultants said the new policies had the potential to make the controversies about Oscar eligibility — an annual rite of passage in Hollywood — more dramatic, even moving it into contenders’ production phase. Many films would not want to move forward until they could be sure of Oscar eligibility.
But even the movies that didn’t meet the standards could solve their challenges pretty easily, supporters of the changes argued.
“It’s not saying, ‘Don’t make movies about White men,’ ” said Cynthia Swartz, a veteran awards consultant who supports the changes. “It’s, ‘If you do, think about inclusion. If you do, then do a lot of the basic things you should already be doing anyway.’ ”