Become a Patreon!


Excerpted From: Mario L. Barnes, “The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-race” World, 100 Minnesota Law Review 2043 (May, 2016) (319 Footnotes) (Full Document)


mario barnesIn his influential article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, Critical Legal Studies (CLS) scholar Alan David Freeman attempts to address the “persistent oversight” of which Patricia Williams speaks in the above quoted language. He does so by reviewing twenty-five years of U.S. Supreme Court jurisprudence in diverse areas, with the goal of analyzing the space between the statutory and constitutional prohibitions on racial discrimination and the continuing subordination of racial minorities. Starting in 1954, and dividing the period into three eras where varied judicial approaches to race and antidiscrimination prevailed, he astutely identified how inequality is maintained partially through the complicity of legal actors. His analysis asserted that this regrettable circumstance occurred because the Court typically sought to address violations of antidiscrimination principles rather than inculcate remedies and focused principally on perpetrator conduct rather than the conditions of victims. Moreover, the Court's analyses applied ambiguous or so-called “colorblind” interpretations of the Equal Protection Clause, which presumed that “racial classifications almost always are unrelated to any valid governmental purpose,” and frequently failed to give primacy to matters of substantive equality. Focusing on U.S. Supreme Court cases primarily from the areas of education, voting, and employment, Freeman repeatedly demonstrated how judicial conduct across the eras he identified simultaneously instantiated racial disadvantage for minorities while bolstering society's moral claims to providing fair treatment to all.

In the nearly forty years since Professor Freeman published his article, despite the improvements in many areas of race relations-- to include the election of the country's first African-American president--the disjuncture Freeman located remains, and, in some ways, has worsened. Gaps for people of color between law's protective promise and their lived experience, however, are now regarded by many as not arising out of racial bias at all. While Professor Freeman wrote his piece during a time where courts articulated then embraced colorblind constitutionalism, he appears to have foreseen that the country was moving rapidly beyond claims of “not seeing” race toward more completely denying the salience of race. In particular, he suggested that beginning in 1974--which was at the end of the time period he initially analyzed--the country entered into an “Era of Rationalization.” In this era, antidiscrimination law was marked by a pretense that the aspirational future where racial discrimination would be an “occasional aberrational practice” was “already here and functioning.” These comments signaled that well before the idea of completely moving beyond identity occupied our societal imagination, the Court had moved to a perspective that is now best described as being post-race. Professor Freeman confirmed this understanding that the Court essentially no longer considered race to be a meaningful category for determining social status several years later. Just over a decade after writing Legitimizing Racial Discrimination, Professor Freeman updated his assessment of antidiscrimination law in a Tulane Law Review article entitled, Antidiscrimination Law: The View from 1989. For anyone who doubts Legitimizing Racial Discrimination had identified a post-race leaning in the Court, The View from 1989 confirmed the blossoming of the phenomenon he earlier outlined in his “Era of Rationalization.” In The View from 1989, Professor Freeman closes out that previously open-ended era in 1984, and describes subsequent cases from that point on as belonging to an “Era of Denial.” In that era, Professor Freeman claims the Court “complete[d] the dismantling process that had begun in the period of rationalization” by treating unequal conditions of victim groups as a “neutral feature of our socioeconomic landscape.”

In The View from 1989, using primarily employment cases occurring between 1974 and 1989, Professor Freeman effectively predicted an approach to antidiscrimination that substantially remains to this day. While the “Era of Denial” was left open-ended, there are some very important differences between approaches to antidiscrimination law in the late 1980s and today. For one, Professor Freeman spoke of a supposed victory over racial bias that could be inferred from the outcomes of cases. Today, the Court's post-race perspective, or perhaps, mantra, need not be inferred. It has explicitly and repeatedly made such representations, which have grown in ardor, at least since the rise of President Barack Obama. Moreover, as key recent opinions of the Roberts Court demonstrate, post-racialism now functions more as a primary lens, rather than as a background theory used to bolster the merits of ostensibly neutral decision-making. Relevant to Professor Freeman's claims, in a world where race has presumptively lost its salience, the Court is even more empowered to focus on perpetrators over victims, violations rather than remedies, and formal instead of substantive equality. Additionally, in a society where race is of no consequence, little analysis need be invested in assessing the institutional and structural, rather than individual, means at work in creating disadvantage. Applying Professor Freeman's method of assessing key antidiscrimination cases in voting, education, and employment within a modern context, this Article identifies the contemporary manner in which post-race discourses are used to legitimize discrimination. The goal is not to assess every race case in these areas over the last twenty-five years, but rather to analyze particularly representative matters. Much in the way that Professor Freeman foregrounded CLS and legal realism principles in his analysis, this Article will similarly apply foundational concepts and scholarship from a prominent CLS successor movement that has arisen since 1978--Critical Race Theory (CRT). In order to stay focused on Professor Freeman's primary arguments, this Article also accepts some constraints on analysis imposed within his critique. Like Professor Freeman, the analysis here will be limited to looking at racial discrimination rather than myriad forms of bias, and will focus primarily on black-white relations.

Based on the foregoing, this Article will focus primarily on three aspects of Professor Freeman's scholarship. Part I focuses on the eerily prescient aspect of Freeman's work: how courts transformed legal doctrine designed to fight discrimination into a means to instantiate unfair societal race relations, by treating race as if it had lost its salience. With regard to these claims, this Article situates Freeman's work as an early commentary on the hazards of presuming America a post-race society. Second, Part II revisits Professor Freeman's articulation of the alternative understandings of equal protection under the U.S. Constitution. Additionally, particular attention is paid to a fissure: how Professor Freeman's antidiscrimination critique was important to enhancing the CLS critique of rights, but simultaneously somewhat under-inclusive for meeting the broader needs of the emerging CRT movement. Part III, guided by CRT principles, argues that the Court has transitioned beyond the “Era of Denial” described by Professor Freeman.

Moving forward from 1989, and using Professor Freeman's method of assessing key Supreme Court decisions in the areas of employment, education, and voting, this Article explores judicial antidiscrimination analysis in our now explicitly post-race world as implicating an “Era of Incredulity.” In essence, the Court has moved beyond merely denying the influence of race to professing astonishment at how anyone could imagine race being the reason for the existence of unequal arrangements and life consequences across social groups. This is so even in the face of significant data depicting racialized differences in most important areas of social life. As prominent CRT and Feminist Legal Scholar Angela Harris has stated, based on the State's decreased investment in white supremacy and a belief that “racist ideology is now taboo,” Supreme Court Justices are “now shocked, shocked! to find racial discrimination still occurring.” As a part of identifying the characteristics of this era, this Part evaluates something that Professor Freeman under-considered--the Court's obsessive tendency to look for discrimination as stemming from individual conduct rather than institutional practice. Based on the prescient nature of the analysis of discrimination attached to Professor Freeman's eras of rationalization and denial, this Article concludes that the “Era of Incredulity” antidiscrimination decisions, however, still typically legitimize discrimination, and that the methods for doing so hold much in common with the practices Professor Freeman observed. This is the impressive but regrettable legacy of his work.

[. . .]

Using Professor Freeman's writings as a starting point and supplementing his analysis with key CRT insights, this Article has attempted to use selected cases to assess the Court's approaches to antidiscrimination doctrine over the recent twenty-five years. As indicated in the Introduction, the merits of Professor Freeman's work are borne out by the fact that his articulation of how the Court's antidiscrimination jurisprudence undermines racial equality is at least as relevant today as it was in the late 1970s. While the limits of his project have been noted, the importance of the work has not been diminished by foundational CRT scholarship that rose in its wake. Rather, that scholarship has served as a means to further explicate, for scholars and the Court, how race and racism continue to inform judicial approaches. A significant point of common agreement between Professor Freeman's work and CRT scholarship has been that the Court's problematic analyses of race within antidiscrimination cases have been marked by a retreat from racial salience. The Court's zealous commitment to moving beyond race, which has grown since Professor Freeman wrote Legitimizing Racial Discrimination, ensures that a disjuncture between statutory protections and lived experience will continue to grow. In some ways the Court's full-blown commitment to post-racialism is understandable. First, it is a natural instinct to want to pat oneself on the back for the arc of racial progress and use it to declare ourselves no longer racist. Additionally, a significant contribution of CRT scholars has been to articulate that race as a category is socially constructed, and of no biological or genetic import. Hence, on some level, it makes sense for people to posit that race is not real. And for these people it also seems logical to reject calls for racial remedies or respond with incredulity to claims that race continues to matter. This relationship to race mirrors Professor Darren Hutchinson's concept of “racial exhaustion,” which he defined as opposition to racial egalitarian measures premised upon “the grounds that they are redundant, unnecessary, or too burdensome or taxing.”

While some may experience frustration related to there being continuous demands for society to invest in equality, that fatigue pales in comparison to the “everyday indignities” and “psychic injury” experienced by those who labor under the weight of stereotypes connected to racial classifications. While race may not be real, the effects of a system of racialization--one that society invests in to create winners and losers along color lines--are real. Under these circumstances, for the Court to nearly wholesale treat race as some sort of false consciousness is more than denial and more than disingenuous. For Professor Freeman, the goal was merely to expose this dishonesty and its untenable consequences for racial justice. The goal moving forward has to be to push back against the premature embrace of post-race with the same ardor that the Court displays when it turns its skeptical eye and incredulous tone toward discrimination claims. With the recent passing of Justice Antonin Scalia, a stalwart conservative and proponent of post-racial ideologies, the opportunity to reorient the Supreme Court's views on race may now exist.

With moral force and all the tools at our disposable-- empirical, normative, theoretical--race scholars should strike now to defend the truth of both the past history and the current lived experience of racism. To quote Professor Angela Harris, “Claiming a nonwhite racial identity in [an] anti-racist context is to make a moral demand on whites to recognize and redress the injuries caused by white supremacy.” Currently, claims for race-based redress are treated as if they are outdated and themselves the problem. The real problem is the Court's ahistorical and inaccurate views of the world--views Professor Freeman saw as perpetuating “the myth of equality of opportunity.” Such views produce the bizarre circumstance where instead of attempting to assess when racial difference is tied to discrimination, they invest in seemingly universal “colorblind rhetoric,” which is itself “a form of racism that ha[s] facilitated the re-articulation of [a] once-defeated justification for racial stratification as a statement in support of social justice.” Hopefully, we will not have to endure twenty-five more years of out-of-touch and unsound rulings on race before the Court accepts this reality.

Professor of Law, Associate Dean for Faculty Research and Development, Co-Director, Center on Law, Equality and Race, University of California, Irvine, School of Law; B.A., J.D., UC Berkeley; L.L.M., University of Wisconsin.

Become a Patreon!