Sunday, August 09, 2020

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 Abstract

Excerpted From: Jerome McCristal Culp, Jr., To the Bone: Race and White Privilege, Minnesota Law Review 1637 (June, 1999)(67 Footnotes) (Full Document)

JeromeMcCristalCulpJrDaniel Farber and Suzanna Sherry in a series of articles and a new book have written a supposed defense of the Enlightenment view of knowledge, reason, merit and truth. With defenders like this the ideas they espoused are in more trouble than even I, part of apostate “radical multiculturalist” critical race theory legal academy, ever thought. It is not that an effective defense of disinterested knowledge could not be waged, but this poorly researched and written diatribe against a growing group of scholars of color and some of those allied with us is not it. I say poorly researched and written advisedly--not in anger but in truth. When Farber and Sherry find an idea of the scholars of color discussed in this book they distort it. When Farber and Sherry defend the ideas of Western European intellectual history they do so with little comprehension and no scholarly pretensions. The important ideas of the Enlightenment are so watered down as to be an unrecognizable imitation of their original power. The philosophical ideas expressed in this book and these articles are to philosophy what lite is to beer. When these ideas had real power that power stemmed not from universal truth but from something much more difficult to obtain, the ability to create a consensus about how to move forward while questioning the present. That consensus no longer exists, perhaps can never be reinvigorated, but that does not mean that we cannot discuss where we are and agree on some common parameters. Unfortunately, Farber and Sherry cannot help us with this project, because their apparent intention is to distort and destroy, not engage.

I will end this essay by trying to engage in a conversation with those in the academy who would like to deal with race as an issue. Farber and Sherry claim that they are trying to do this, but the book and their series of articles are devoid of any meaningful effort to do so. Farber and Sherry make three points:

Rather than asking whether radical multiculturalism is good philo-sophical theory, we prefer to ask whether it is wise politics. . . . In *1641 agreeing to debate whether radical multiculturalism provides a viable political vision, rather than whether it is true, we are in effect agreeing to fight on the radicals' own terms--perhaps at the risk of taking on some of their characteristics ourselves.

. . . [W]e believe that we do share some premises with them, or at least with many of their sympathizers. . . .

• A valid conception of equality should condemn racism not only against blacks and Hispanics but also against Asians and Jews.

• Advocates of equality need to be able to engage in constructive discussions with each other and to contribute to public discourse in society at large.

• In order to learn from experience, society should aim for the fullest possible understanding of the past, free from overt political pressures, and should reject any standard for truth that allows suppression of the memory of genuine suffering. The problem with these common assumptions is that they misunderstand critical race theory. With respect to the first point, critical race theory does not limit its discourse to blacks and Latinos. We have been among the most integrated of movements in the legal academy. Indeed we are African-Americans, Korean-Americans, Chinese-Americans, and Japanese-Americans, Latino/as, and Caribbean African-Americans, Christian, Buddhist, Moslem and Jew and nonbelievers. Of course, since we understand the difficulty of essentialism we do not believe that because we are all of these things that we are not necessarily racist, anti-Asian, anti-Semitic, or anti-black. If you read the substance of what we have written, however, you cannot find evidence of this in the central body of our work. Farber and Sherry can only see us as black and Hispanic and cannot see the multiple texture of our movement and its confrontation with law and the legal academy.

With respect to the second point the authors do not engage the very authors in critical race theory who have most clearly tried to engage in a discourse. Farber and Sherry would replace that discourse with a coerced agreement on what is important. If critical race theory agreed that the racial status quo is good, that concedes the key intellectual contest. Farber and Sherry fail to discuss this issue.

 I am still baffled by what Farber and Sherry mean by the last point. As I understand critical race theory we want to talk about the reality of racial suffering. Farber and Sherry seem to believe that they do not need to discuss real suffering and that we can simply replace that history of suffering with a celebration of assumed truths. Brown is unassailable. Law is good. Supreme Court Justices are in general racially wonderful. These views are barely defensible, but they are not mandated as the only way to have a real discussion about race. Farber and Sherry also write,

We do not, however, bring this argument [criticizing critical race theory] forward without misgivings. The people whose views we criticize are, after all, earnestly seeking to remedy some of the worst injustices of our society. Given our liberal Jewish backgrounds, we feel a particular sense of discomfort in attacking the work of progressive minority scholars, or of seeming to reopen old wounds between the Jewish and black communities. Moreover, we have a strong distaste for the growing incivility of academic disputes.

I do not think you can read what I or other critical race theorists have done as being an effort to represent the communities of color in conflict with the Jewish communities. I would argue that raising this question without more evidence suggests an antipathy that I have not seen in the many critical race theory, Latcrit, and people of color conferences I have attended over the last ten years. It is almost as if they are saying they must be talking about us-- what else is there. In addition, what does it mean to be liberal on the race question. I would not describe Professor Sherry necessarily as a racial liberal. Consider the following statement:

Aleinikoff, in his eagerness to empathize with the victims of racism, completely overlooks the victims of sexism. Similarly, his description of the young black man who felt resentful when a white woman with a baby crossed the street to avoid him naturally invites a comparison: he fears for his emotional well-being, but she fears for her physical safety. I, at least, would rather be snubbed than raped. She does not seem to be able to see racial oppression. As far as I can tell there is very little difference on the race question between Newt Gingrich and Farber and Sherry. They have a right to believe what they want, but it does not make them liberals on race issues even “if” they are liberal on other issues.

It ought to be clear that one need not be a liberal to be a good person, but I am not sure I find the supposed liberalism in the public discourse of Farber and Sherry in the general discourse about race. As a Hubert Humphrey democrat I find the notion that they are liberals not supportable by the evidence.

One question should be addressed before I begin. If this book and the articles are so poorly researched and written, why pay attention to them? Unfortunately, much of the traditional legal academy takes these views expressed in books and articles seriously. Several important federal judges have reviewed the book and found it important, helpful and accurate. Reviews by the important opinion makers of our society have appeared in the New York Times, Wall Street Journal, and New Republic. I do not believe they stand alone outside of or inside the legal academy. Some of my colleagues are likely to see Farber and Sherry's book as the final useful word on critical race theory. Because this view will hamper the potential for critical race theories to change the profession, I will take the criticisms--even though not seriously executed--seriously. I hope that those who want to engage on race -- *1644 whether they agree or disagree with me or others who do critical race theory--can begin to do so.

[. . .]

Our racial past haunts our law and legal scholarship not unlike the baby ghost in Beloved. In the law it is represented not by the incorporeal body of disembodied ghosts but instead by unacknowledgeable privileges buried in the law and in our scholarship. These privileges are buried in our supposed neutrality, objectivity, and merit. It is only the privilege of the largely white majority that allows us to see affirmative action as the greatest privilege in admissions to higher education, including law schools. The evidence is quite clear that the mainly white privilege that exists for alumni children is numerically more important than any racially sensitive concern embedded in affirmative action admissions programs. One would think from the rhetoric of Farber and Sherry, the Thernstroms, and Ward Connerly that merit is embedded in the law of the land. The truth is that merit is neither required by law, mandated by customs, nor embedded in our history. Those who have successfully ended affirmative action in California by administrative fiat and state referendum did not require that all decisions for admissions be done based upon merit. Instead merit has become ignoring race and gender in coming to a decision.

It is clear, for example, that some racially sensitive programs have helped employers and colleges and universities be more sensitive to a wide range of people (nonwhite and white) who were ignored by traditional procedures. It is also clear that traditional merit can be used to hide privileges that do not reflect real merit. Despite the claims made by our detractors, critical race theorists believe in merit, truth, and justice. It is impossible to live in a market society and not have to deal with these issues, but we believe those social constructions are easy to use to support--sometimes unknow-ingly--white supremacy.

Can unacknowledged privilege dwell within the theories of critical race theorists? Of course. To understand that fact does not make the privileges equivalent for traditional scholars and critical race theorists. Anger is always a reactionary response to real or perceived injuries. Anger in that instance does not become the equivalent of the long history of subordination and power embedded in white supremacy, and the claim that it does amounts to another form of privilege. Sometimes anger can be simply an inarticulate cry of unchastened emotion that does not educate, inform or heal.

Is it possible that the anger of critical race theorists--including myself-- has availed itself of the privilege of the victim? When the families of the victims of Jeffrey Dahmer--particularly some of the black family members-- screamed that they wanted to kill Dahmer, the reaction may have been about simply unfathomable desire to achieve retribution. When Marc Klass says that his daughter's killer should die, it may be that it amounts to a form of atavistic revenge and hurt. When the black parents of the victims of the Atlanta child murders claim that the killing was by white people, they may have fallen victim to the anger of the moment.

Critical race theory has, in my view, missed that trap of victimhood. Though many may see critical race theorists in the role of victims, I never have. What I read in the pages of the long story we are telling about race is a claim of the right to demand change and to highlight problems in a common society. We may have been victims of some racial crimes, but we are not seeking primarily either victim status or an effort to punish an incorporeal devil, but to deal directly with the reality of white supremacy in our midst. We demand the right to participate in the discourse about this society not as the image of us in the white mind, but in all our reality. The question is do we sit and weep about the privileges lost or hide behind protective legal covers from the ghost of our racial past. It is the job of critical race theory to remind us that that is the choice we are making.


Professor of Law, Duke University School of Law; Charles Hamilton Houston Visiting Professor of Law, North Carolina Central University School of Law. B.A., University of Chicago; M.A., Harvard University; J.D., Harvard Law School.


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