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Excerpted from: Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence, 11 Michigan Journal of Race and Law. 477 (Spring 2006)(387 Footnotes) (Full Document)


CecilJHuntIIAt the dawn of the twenty-first century, race and racism remain among “the central issue[s] in American life,” and affirmative action remains one of its most intractable and divisive battlegrounds. But there can be little question that despite its continuing salience, racism in America is not what it used to be. Some argue that racism has been essentially eradicated; they see neither its operation nor its effects anywhere and champion what they describe as a new common sense about race that emphasizes colorblindness. Others see the operation and effects of racism almost everywhere, and insist that in contemporary America, racism's “shelf life . . . in social and political behavior” is so enduring that it “is as healthy today as it was during the Enlightenment.” Still others urge that racism's most virulent contemporary manifestation is in fact a form of reverse racism aimed at innocent Whites, especially White males, who, it is argued, have been unfairly burdened by ancient sins that they did not commit in favor of modern claimants who have not suffered.

However, there can be no question that at the beginning of the twenty-first century, American racism directed against people of color in general, and African Americans in particular, has changed dramatically over the last 300 years. There is still much to be done before true racial equality can be realized. A matter of considerable scholarly and political debate is whether the dramatic change in the power of racism represents a real defeat or merely, in response to changing circumstances, a tactical withdrawal from the overt center stage and a redeployment in new disguises, metaphors, and surrogate discourses with the same tired unreconstructed strategic goals of total racial domination, racialized exclusion, and uncontested normative White supremacy.

The very existence of this debate goes a long way toward explaining why it is so difficult for Americans to engage in candid and honest discussions about race across the color line. One of the central reasons that these discussions are so difficult was eloquently and accurately summarized by the prize winning journalist and essayist Ellis Cose when he wrote, “What one cannot refute . . . is the reality of the perceptual chasm separating so many blacks and whites. The problem is not only that we are afraid to talk to one another, it is also that we are disinclined to listen.” Ellis Cose's perceptive insight reveals that the racial debate in America today is in many ways truly a discourse with the deaf, and thus there are few reasons to be sanguine about a positive change in this racial communicative impasse anytime soon. This theme was echoed by former New York Mayor Ed Koch who presciently observed in a 1992 speech at New York University that if Americans “are not willing to face up to the importance of who we are and where we come from, we will never have the candid dialogue and the real [racial] debate we should have.”

So the question remains: has the lost cause of White supremacy in America really been lost or has it merely morphed into a modern form of psychological guerrilla warfare, waged by other more subtle and perhaps even more effective means? A particularly illuminating example of America's contemporary ambivalence over the accuracy or exaggeration of the reports of racism's demise can be seen in the intense and extreme polarization in the juridical, political, and public debate over the issue of affirmative action in higher education. This Article finds common cause with that side of the debate which holds, in short, that racism has not died either a quiet or ignominious death. It argues, instead, that racism has merely traded in its old and crude weapons of colonialism, slavery, Jim Crow segregation, and racial terrorism in exchange for more subtle, and ultimately more effective, modern, sophisticated weaponry of metaphor, rhetoric, language, image, denial, and most importantly--perspective.

The central argument of this Article is that while the legions of racism may have been driven from the open and overt battlefield of explicit public policy and naked sanction of law, they continue to wage the same war of total racial domination on a covert basis. Under this new strategy, the forces of racism and White supremacy have redirected their fire from direct assaults on the public square to the more rugged, entrenched terrain of the hills, valleys, and horizons of the juridical, political, and literary imagination. This new form of White supremacy is harder to see than its predecessor, and is more difficult to directly engage, as well as being less amenable to the mobilization of mass public protest; it is precisely for these reasons that the need for its identification, confrontation, and resistance is more urgent than ever.

This Article focuses on affirmative action in higher education as but one, albeit a particularly illustrative one, of a myriad of examples of the continued strategic consistency and evolving tactical transformation of White supremacy. The principle thesis of this Article is that, at its core, the intense polarization of the debate over affirmative action is less about the surrogate discourses of diversity, candor, and fairness and fundamentally more about the racialized perspectival chasm regarding the standpoint from which racial reality is interpreted, articulated, legitimized, conceived and imagined in juridical, political, and public discourse.

The significance of this racialized perspectival chasm was recently on vivid public national display, and dramatically and tragically illustrated in the distinctly racialized public reactions to the after-effects of Hurricane Katrina. During the extensive media coverage of the aftermath of Hurricane Katrina in the late summer of 2005, two contrasting media images from flood-ravaged New Orleans captured the public's imagination and painfully exposed the stark differences between the White-centered and the Non-White perspective on racial matters in contemporary America. The day after the catastrophic flooding, Yahoo News published two pictures of the flood survivors on its website that immediately sparked a national controversy. The pictures were strikingly similar in content but were accompanied by starkly different descriptive captions.

In one picture, a young Black man is shown wading through chest-high water carrying bundles of food in both hands. In the other, two young Whites, a man and a woman, are shown doing the same. However, that is where the similarity ends. The captions judgmentally describe the young Black man as a “looter;” while in sharp contrast, the similarly-situated Whites are benignly characterized as mere “finders.”

The only substantive difference between the two pictures, and therefore the only basis for the difference in their respective captions, is the racial identity of their subjects. Through this form of “visual rhetoric” and racialized narrative, the caption characterized the Black man, solely by virtue of his skin color, as a predator exploiting a tragedy by engaging in the criminal behavior of looting--and thus as morally blameworthy and deserving of societal condemnation. In contrast, solely on the basis of their skin color, the caption characterized the White couple as innocent victims responding to a natural disaster by engaging in the non-judgmental behavior of “finding”--thus beyond the reach of moral blameworthiness or condemnation.

The difference in these captions is representative of the negative, racialized, and stereotypical representations of Blacks in the American mass media. As David Chaney has accurately observed, such racial “[r]epresentation[s], far from being pictures of the social world, [are] more profoundly understood as the endlessly negotiable ways in which the world is being constituted and articulated.” This sort of racialization not only reflects and constructs public opinion but, also, “provides meaning to our experiences [and] provides the very terms of [that] experience.”

The disparity between these conflicting caption descriptions represents a particularly evocative example of what a recent New York Times poll described as the “starkly divergent perceptions” between Blacks and Whites “of many racial issues.” However, the photographers and editors responsible for the photos have suggested that these widely-circulated pictures and their divergent captions may have a more racially ambiguous or even a racially-neutral explanation.

Notwithstanding the photographers' and editors' alleged racially-neutral explanations, their justifications are not only unsupported by any independent corroboration, but the views are themselves the by-products of their own socially mediated racialized perspectives and interpretations. More importantly, whatever the veracity of these explanations, there is no doubt that far more people saw the pictures and their disparate captions than read the online explanations offered by the publishing news services. Thus, the impact on the public imagination was affected by the visual rhetoric of the pictures in ways that, however accurate, written explanations with limited circulation could never significantly ameliorate. Once these starkly contrasting images were widely publicized, they became a part of the culture and were in effect “frozen, incapable of growth, change, innovation or transformation.” Given the racialized power of the media in America, “Racial representations help to mold public opinion, then hold it in place and set the agenda for public discourse on the race issue in the media and in the society at large.” This process is particularly important in the racial arena because “Black media stereotypes are not the natural, much less harmless, products of an idealized popular culture, [but] are more commonly socially constructed images that are selective, partial, one-dimensional, and distorted in their portrayal of African Americans.”

The “starkly divergent” perceptions of racial reality between Blacks and Whites exemplified by these now infamous pictures is a powerful reflection in a racial context of what Martha Minnow described in the epigraph to this Article as the distinctions between different “starting point[s]” or “point[s] of view.” Because of America's historical and contemporary “stubborn racial divide,” those starting points are deeply racially-inflected and the racial perspective of the observer can--and frequently does-- have a profound influence on the perception of racial reality.

In analyzing the issue of affirmative action, this Article argues that one of the principal reasons for the stark divergence in views between its supporters and detractors is grounded in the different starting points or racial perspectives of the observers. The opposition to affirmative action takes its perspectival bearings from a White-centered “point in space,” regardless of the individual skin color or racial self-identification of the persons involved.

This White-centered perspective operates like a powerful mythological tool that, like a “ævirus'[,] . . . infects our reasoning and our politics . . . . serv[ing] ænot to deny things' but to take the troubling images in our everyday lives--depictions resonant with our fears, our intolerance, our bigotry--and make æthem innocent . . . give . . . them a natural and eternal justification.” Mythology has always been a powerful force in shaping and rationalizing any society's view of itself and the world and that has been particularly true in the context of race. Historically, race-based mythologies have served what has been described as “the sinister adjective of the white supremacist, delineating a whiteness that is superior, moral, wholesome, stable, intelligent, and talented and a blackness that is inferior, stupid, shiftless, lazy, dishonest, untrustworthy, licentious, and violent.”

The principal purpose of the contemporary American racial myths surrounding the issue of affirmative action is to act like a “seamless narrative that tells us [that] the contradictioins [sic] and incongruities of race and racism are too confusing or too dangerous to articulate” either directly or with too precise a linguistic turn. Such myths provide a type of “elegant deception” by which the dominant White culture can hide, justify, and “reinforce . . . unconscious prejudices.” In short, as Maurice Berger has argued, “[m]yths are the white lies that tell us everything is all right, even when it is not.” Similarly, as Peter Fitzpatrick has correctly observed, the very act of attempting to deny the foundational nature and impact of race in modern society is itself a myth.

This Article argues that the central mythological scaffolding upon which opposition to affirmative action is built is based on a juridical rhetoric of White innocence. Although this focus is both insightful and illuminative, a connection between affirmative action and an American jurisprudential rhetoric of White innocence is neither new nor particularly innovative. A number of insightful scholars have profitably mined this ground in the past. This Article incorporates the insights of these other important scholars' works and builds upon them in an effort to expose and undermine more of the bedrock of the “elegant deception” of White innocence by suturing this rhetoric with the perspectival phenomenon of the White-centered perspective.

This Article argues that the rhetoric of White innocence as deployed in American affirmative action jurisprudence is not only philosophically inappropriate, but also constitutes significant constitutional violations. These violations include, but also go beyond, the traditional arguments running afoul of the equal protection guarantees of the Fourteenth Amendment. I argue that the violation also extends to a fundamental breach of the Constitutional principle of due process, both substantively and procedurally, and amounts to an unprincipled, arbitrary, capricious, and irrational imposition of racial favoritism.

As an analytical vehicle, this Article examines the juridical monopoly of the White-centered perspective through the rhetoric of White innocence as deployed in the Court's jurisprudence on affirmative action in higher education.

Section I examines the phenomenon of the White-centered perspective and its monopolistic grip on the imagination of the Supreme Court.

Section II situates the content of the ideology of White innocence within the larger context of the ideology of Whiteness.

Section III discusses the Court's specific deployment of the ideology of White innocence as a counterbalance with which to measure the constitutionality of race-conscious affirmative action programs in the context of higher education.

Section IV examines the extent to which the juridical monopoly of the White-centered perspective, through the deployment of the rhetoric of White innocence in affirmative action cases, constitutes a violation of the constitutional guarantees of equal protection and due process.

Section V recommends ways in which the hegemonic grip of the White-centered perspective can be dismantled, not only in affirmative action cases but in other racially-inflected constitutional disputes generally. By supplanting that perspective with a constitutional racial analytic that appreciates multiple legitimate racial vantage points and perspectives, the Court may paint a more realistic, more rational, distinctly non-arbitrary and more balanced picture of the true state of racial reality in America.
. . .

The normative deployment of the rhetoric of White innocence in the Supreme Court's affirmative action jurisprudence demonstrate that the Court is unreflectively locked into a White-centered perspective or master framework in terms of its ability to perceive and understand America's racial reality. As a consequence, this racially-limited perspective distorts the Court's appreciation for the full and balanced texture of racial reality in contemporary America, both limiting its analysis and dooming its remedies in combating the nation's real and intractable racial problems.

The answer to this problem is simultaneously deceptively simple and abstractly complex. It begins with a simple act, as captured in the epigraph of this Article, of recognizing that “any point of view, including one's own, is a point of view.” From this simple act comes an implicit recognition of the existence and validation of opposing points of view. In this way, those who are locked into a White-centered perspective--particularly the Supreme Court--can come to recognize and appreciate that their views on racial matters reflect only a particular racial experience formed in a racialized culture that neither speaks for nor completely exhausts the metaphysical truth about America's racial reality.

Through its recognition, the Court can come to not only appreciate its own perspective as both racialized and limited, but also simply as only a perspective, and thus to respect competing perspectives that may see the world, both literally and figuratively, through a different-colored lens. Without that threshold recognition, the differences in racially-inflected perspectives “admit no common ground,” and result in

black and white Americans . . . tak[ing] possession of distinct paradigms . . . . [with] blacks and whites look[ing] upon the social and political world in fundamentally different and mutually unintelligible ways [while] . . . . speak[ing] across different theoretical [mindsets] . . . .

As a consequence, “[W]hite and black citizens appear to have a terrible time talking to one another about race.” However, despite the size of the gap that separates the White-centered from the Non-White-centered view of racial reality, although it is not impossible to engage in “democratic discussion across the racial divide . . . . it is hard.”

A significant part of the problem in speaking across different racial paradigms is that the White-centered perspective, especially as articulated by the Supreme Court, refuses to acknowledge that it is a racial paradigm and that it reflects a particular racial perspective. Therefore, the Court cannot recognize the existence of any legitimate competition. Given the logic of this perspective, since the Court's perspective represents the objective truth, its only competition must be falsity, error or untruth.

From this perspective, any dissenting opinions are dismissed as interest-based ideologies or identity politics, and engaged in for the sole purpose of enlightening them or bringing them up to the point where they can be converted to also see the world through the White-centered perspective. This is essentially missionary work to save the godless and savage souls of the unenlightened rather than legitimate political engagement with ideological opponents who are worthy of respect and dignity. This is not a sound basis for deliberation because, by definition, such a perspective seeks not mutual respect but rather demands absolute surrender, total capitulation and ultimate assimilation.

Finding common ground requires, first, attaining “a language of mutual respect,” and hopefully through that process of mutual respect, also come to see the critical influence that our mutual scars and wounds have in determining the perspectival line of sight from which we all experience and understand racial reality. This simple act of mutual respect and validation can potentially have deeply transformative and healing effects on America's discordant racial dialogue, which in the end could allow society to talk about race more comfortably, productively, and realistically, as race is actually lived in America rather than merely how it is imagined and perceived thorough a White-centered lens. This is a goal we must achieve if racial inequality is ever to be solved, and although achieving this goal will surely require much hard work, “[T]he stakes are [so] high” that failure cannot be an option.

The rising flood waters of Hurricane Katrina showed America a distinctly racialized world of Blackness, poverty, suffering, and death that it preferred not to see; a world that it had convinced itself was part of America's shameful past and not its triumphant present. Most Whites in America recoiled at what they saw but to this day insist that it had nothing to do with race.

In striking contrast to the predominate White reaction, most Non-Whites generally (and Blacks in particular) in America saw it quite differently; in those heart-wrenching scenes, we saw not alien others, but our own faces, our own loved ones and our own families, suffering, pleading, dying and crying for help that seemed incomprehensively slow in coming, and shockingly indifferent to the appalling specter of human suffering on such a massive scale. From our perspective, we understood that, as the old saying goes, “There but for the grace of God, go I.” Such is the power of perspective.

As a consequence, the message seems to be that if America does not heed the warning that Katrina laid so bare in our living rooms day after excruciating day for what seemed like an eternity, and learn, as James Baldwin wrote, to “insist on, or create, the consciousness of the others,” then perhaps the great American experiment in democracy has indeed passed the crest of the arc of history and begun its slow descent into oblivion. If so, then perhaps, as Baldwin so eloquently observed, the “fulfillment of that prophecy, recreated from the Bible in song by a slave, is upon us: æGod gave Noah the rainbow sign, [and said] No more water, the fire next time!”Æ

Associate Professor, The John Marshall Law School; A.B., Harvard University, J.D., Boston College Law School.