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 Excerpted from: Charles R. Lawrence III, Passing and Trespassing in the Academy: on Whiteness as Property and Racial Performance as Political Speech, 31 Harvard Journal on Racial & Ethnic Justice 7 (Spring 2015) (78 Footnotes) (Full Document).


Charles R LawrenceCheryl Harris begins her canonical piece, Whiteness as Property, by introducing her grandmother Alma. Fair skinned with straight hair and aquiline features, Alma “passes” so that she can feed herself and her two daughters. Harris speaks of Alma's daily illegal border crossing into this land reserved for whites. After a day's work, Alma returns home each evening, tired and worn, laying aside her mask and reentering herself. “No longer immediately identifiable as ‘Lula's daughter,’ Alma could enter the white world, albeit on a false passport, not merely passing, but trespassing.”

In this powerful metaphorical narrative of borders and trespass, of masking and unmasking, of leaving home and returning to reenter oneself, we feel the central truths of Harris's theory. She asserts that whiteness and property share the premise and conceptual nucleus of a right to exclude, that the rhetorical move from slave and free to black and white was central to the construction of race, that property rights include intangible interests, that their existence is a matter of legal definition, that the law values and protects existing regimes of power and white supremacy, and that those regimes are deemed permanent.

For many years now, on the first day of class in my seminars on Critical Race Theory and Race Law and Literature, I have asked my students to bring photographs of their maternal grandmothers to class with them. The class begins with students introducing themselves and then their grandmothers. I tell my students that I want them to keep their grandmothers in the room throughout the semester, to keep them by their sides as they read the assigned materials and write their reflection pieces, to speak up and give them a voice if, during a class discussion, their grandmothers would want to respond to a comment by a classmate or ask a question. My initial purpose in this pedagogy was to remind us of the wealth of our diversity, to encourage students of color especially, but also white students, to bring the stories of their families and communities into this discourse on the law. Through this exercise, we answer Mari Matsuda's call for us to look to the bottom and hear the voices of the excluded, to learn that listening to these voices is central to critical theory and practice.

But as I taught Whiteness as Property just two weeks before UCLA's Critical Race Studies Symposium, moving it up on my syllabus to help me to prepare for the event, I recognized another lesson contained in Harris's story and in my pedagogy. Our grandmothers, like Harris's, are trespassers on this white property of intellectual and legal discourse. They would cross this border without the appropriate papers of qualification and merit, signified by admission to the academy or the bar. The rules define them as “unqualified,” deem their voices and experience irrelevant, deny them identity, status and access.

If our grandmothers do not belong here, how have we come to belong? How have we managed this border crossing? Are we granted access because, like Alma, we are no longer identifiable as our people's daughters and sons? I ask my students to tell me about a time when they felt as if they were “passing,” whether Harris's grandmother's story of making herself invisible feels familiar to them. If the law now forbids the “whites only” signs and the formal rules and practices that required Harris's grandmother to pass, why does their experience feel like passing?

Harris teaches that, although the court in Brown v. Board of Education condemned legalized segregation in schools as inherently unequal, and rejected the property right of whites in officially sanctioned inequality, it “failed to expose the substantive inequality in material terms produced by white domination and race segregation.” De facto white privilege remained unaddressed. Brown ratified and reified the status quo of substantive inequality and sheltered white expectations of race-based privilege. The transition from old to new forms of whiteness as property is achieved in this legitimation of substantive inequality and settled expectations of relative white privilege.

When people of color come to the academy, a place where inequality is institutionalized and rationalized, we trespass on white property. Our presence violates settled expectations that the status quo of white privilege will not change. But now that the law has abolished formal segregation, fair skin, straight hair and aquiline features are no longer the only disguises that allow us to pass. The new narrative that rationalizes the property of white privilege claims that race has no meaning. I call this story the “Big Lie.” White supremacy requires this new version of the old story because anti-racist movements have achieved significant successes in contesting the narrative that justified racial domination by the slaver's lash and the colonizer's gun. The master's method has shifted, if only in emphasis, from domination to hegemony. But the hegemonic project must enlist the minds and voices of some of us who are racially subordinated. If we think about Harris's metaphor of “passing and trespassing,” it can help us understand how the new “colorblind post-racial” narrative seeks to seduce and enlist us in white supremacy's new hegemonic project. “Come join us,” it calls. No need to look white, although it might help. All you need do to gain access to the new white property is to join us in the racial project, in helping us tell the “Big Lie.”

The new whiteness as property no longer marks its borders with Jim Crow's “white” and “colored” signs. Instead, structural racism and white privilege are legitimated by those signs' absence. In the context of this “post-racial” project, we must understand the invitation to “pass,” to differentiate from those other blacks, within contemporary racial formation's theoretical framework. Our racial identity, our presentation of self, what some theorists have called “racial performance,” either participates in white supremacy's master narrative, or contests that narrative. When people of color participate in the narrative of colorblindness, we “pass.” When we say that our race signifies nothing, we support the post-racial project that protects and defends white property by denying its existence. Moreover, we deny our relationship with our community, and we join in the signification of other blacks as less-than-human.

II. Representing the Race: My Grandmother's Warning and a Letter from Dr. Dubois
III. “Danger! Educated Black Man”: Racial Performance and Political Speech
IV. The Mauna Kea Mural: Whiteness as Property and the First Amendment
V. “I Too Am Harvard” Performing Race in the Post-Racial University
VI. “I Can't Breathe,” “Black Lives Matter”: Trespassing on the White Property of Post-Racial Discourse ot the belief that white lives matter more than black.

. . .

At a deeper level, “I Can't Breathe” and “Black Lives Matter” articulate the everyday violence visited on black communities by the savage inequalities of segregated schools, by unemployment and an ever increasing wealth gap, by our disproportionate numbers in prisons and our declining numbers in universities and the professions. Most black children will not die at the hands of the police, but black and brown children who attend segregated schools are “more likely to be poor, more likely to go to jail, less likely to graduate from high school, to go to college, or to finish if they go. They are more likely to live in segregated neighborhoods as adults. Their children are more likely to attend segregated schools, repeating the cycle.”

This is the violence inflicted by the “modern property” in whiteness, the expectation of white privilege, ratified and legitimized by Brown v. Board of Education's failure to recognize and dismantle the substantive inequalities created and maintained by officially sanctioned white supremacy and segregation. The Rehnquist and Roberts Courts have extended the boundaries of this property in whiteness and built higher fences to protect its borders, releasing hundreds of school districts form court-ordered desegregation orders and using the colorblind rhetoric of the anti-affirmative action cases to hold that school districts may not use race to voluntarily desegregate their schools. The Supreme Court's colorblind doctrine and the post-racial discourse it fosters ratifies modern white property claiming that structures and institutions that exclude, imprison and police us erect no borders, no walls that deny access or signify status, bestow no property defined by whiteness.

This discourse invites some to pass, to gain access to the modern property of whiteness by putting on our masks, by accepting the invitation to exceptional status, by denying ourselves. We are offered the opportunity to join a master narrative that pretends that race does not matter and that racism no longer exists. The young people in the streets reject this offer when they chant “black lives matter,” when they wear “I can't breathe” shirts as they warm up for basketball games, and raise their hands in solidarity with Michael Brown's dying gesture, when they claim Mauna Kea as living ancestor and relative against an occupying state's claim of ownership, when they wear their “Danger” shirts and invite their grandmothers to class. They answer Cheryl Harris's call to engage in open and notorious trespass on white property and reclaim it as a commons, and I marvel and rejoice at the clarity of their voices and the sight of their beauty.

Professor of Law, William S. Richardson School of Law, University of Hawaii. B.A. 1965, Haverford College; J.D. 1969 Yale Law School.