Saturday, December 04, 2021

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 Abstract

Excerpted From: Eleanor Marie Brown, The Tower of Babel: Bridging the Divide Between Critical Race Theory and “Mainstream” Civil Rights Scholarship, 105 Yale Law Journal 513 (November 1995) (Note) (162 Footnotes) (Full Document)

 

eleanor marie brownCritical race theory challenges the exclusion of voices “from the bottom” in mainstream legal scholarship. Critical race theorists insist “on recognition of the experiential knowledge of people of color and our communities of originin analyzing law and society.” As Mari Matsuda describes this project: “From the . . . namelessness of the slave, from the broken treaties of the indigenous Americans, the desire to know history from the bottom has forced . . . scholars to sources often ignored: journals, poems, oral histories, and stories from their own experiences of life . . . .”

Critical race theorists' use of narrative epitomizes this attempt to include voices “from the bottom.” This reliance on narrative is explicitly pragmatic. First, critical race theorists use narrative in a self-conscious effort to include the voices of people of color who have traditionally been excluded from conventionally “appropriate” legal scholarship. Second, the use of narrative challenges the traditional meritocratic paradigm of the academy by attempting to subvert what are viewed as pretenses of “objectivity,” “neutrality,” “meritocracy,” and “color-blindness.” To the extent that one writes in the conventional mode, one glorifies these traditional meritocratic standards that were conceptualized in a “raced” world.

The critical race theory “manifesto” might be characterized as follows: We, as people of color, were not there when conventional legal standards were being formulated. Little wonder that these traditional meritocratic standards have worked to exclude us historically, and still work to exclude us. Disenfranchised people of color theorize, but they theorize in different ways. They tell stories. Hear us, and hear us in our own voices. It is only then that you will truly hear us.

The response of the larger academy to this “upstart” movement has been one of decided ambivalence. It bears little resemblance to the reaction of the mainstream academy to the “outsider” movements of previous generations. A case in point is the emergence of the critical legal studies movement (CLS) two decades ago. When CLS first issued its most damning critiques, the academy responded vigorously. Liberal civil rights scholars, who sawthemselvesas actively involved in challenging legal inequality, began intellectual soul-searching as they struggled to defend their project. Although the gulf between CLS and the mainstream academy has arguably never been bridged, there can be little doubt that mainstream scholars have engaged in a sustained grappling with CLS's critiques. The academy has been pushed to look within.

When it comes to legal scholarship addressing race, by contrast, it is striking that despite the existence of critical race theory for nearly a decade, the response to it has generally been a conversation among those who identify themselves as critical race theorists. There simply has not been the sustained self-examination by traditional civil rights scholars that should result from the powerful critiques that critical race theory has posed to fundamental tenets of the academy. The inadequacy of the mainstream reaction to critical race theory is not reflected in the quantity of the responses. There have been persistent critics of critical race theory and of the narrative project in particular. Rather it is the quality of the responses that has been disappointing. Those whohave taken the time to respond have largely attacked form rather than substance. As scholars have tinkered with these more peripheral questions, sadly the more fundamental questions have hardly been posed, much less answered.

Thus, when “insiders” offer critiques of this “outsider” scholarship, there is little fruitful dialogue. The “outsiders” and the “insiders” seem to talk past each other rather than to each other, passing by each other but never quite meeting face-to-face. The resulting breakdown in communication is an academic “Tower of Babel,” a replication on a small scale of the biblical story. Each group of scholars does not quite understand the other's language.

Critical race theorists simply have not been communicating with their peers. The irony of this conversation (or lack thereof) is indeed striking. Critical race scholarship has self-consciously identified itself as “outsider” jurisprudence, with the stated goal of transforming the racial exclusivity of the law, society, and the academy. Yet one cannot transform without communication. To the extent that the stated goal is transformative, critical race theory has a responsibility to communicate with the larger academy, particularly with “mainstream” civil rights liberals, who also view themselves as involved in a broader project of eliminating discrimination.

I do not argue that critical race theorists are not heard because they use narrative. It is true that narrative is an “outsider” mode of discourse in legal scholarship that has only recently begun to receive recognition. It is also true that Derrick Bell broke new ground when he wrote his Harvard Law Review Foreword in the narrative form. Scholars such as Robert Cover and JamesBoyd White, however, have long championed narrative as a mode of legal writing. Similarly, feminist scholars have been vigorous proponents of including women's stories in legal analysis. Critical race theory stands on ground that had been broken long before its official arrival.

I would argue that the central issue is not the use of storytelling, but the way White characters are portrayed in these stories. Critical race narratives simply have not incorporated the extensive social science research indicating an increased sophistication of White attitudes toward race. Survey research over the last two decades has consistently shown that White Americans generally do not perceive themselves as actively contributing to racial privilege. They are not the old-fashioned racists of the past -- the George Wallaces and Bull Connors -- “dominative” racists, as the social science literature terms them. Despite this change, the Whites in critical race stories epitomize “dominative” racists. Partly for this reason, the legal academy in general and mainstream civil rights scholars in particular do not recognize themselves in critical race narratives and thus remain unconvinced by them.

This Note is an appeal to the critical race theory movement to draw on the wealth of empirical research about racial attitudes. Critical race theory presumes that “racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines.” This is a difficult conceptual leap, but it is not inherently more difficult than that required by the“outsider” movements of other eras, be it the legal realist or the CLS movements. Empiricism might help “insiders” transcend the divide.

In Part I, I present a brief overview of the fundamental premises of critical race theory. I also address the common critiques of critical race theory. Part II discusses racial opinion surveys over the past four decades and a number of social science models. It shows that Whites, particularly those who identify themselves as “liberal,” perceive themselves to be strongly egalitarian even though there is a wide disparity between their theoretical support of de jure equality and their actual treatment of Blacks. I offer a theoretical framework that I term “schizophrenia” to conceptualize modern White attitudes toward Blacks. In Part III, I employ the “schizophrenia” framework to offer a critique of critical race narratives, focusing particularly on the work of Derrick Bell, Richard Delgado, and Patricia Williams, and using my own narrative. In Part IV, I challenge critical race theory to move beyond a perfunctory recognition of the nuanced nature of White attitudes to a full incorporation of this reality into its narrative critique of legal institutions.

As an aspiring critical race theorist, I agree that “masks and other disguises” must be exposed for what they are -- pretenses for perpetuating subordination. We must be careful, however, that even as we struggle to have our stories included, we do not frustrate our own goals through the stories we tell. Perhaps then we will begin to speak to our peers, and only then will they truly begin to reply.

[. . .]

Kendall Thomas coined the phrase “'we are raced”’ as a race-conscious challenge to the abstract notions of citizen and state as they are conceptualized in liberal legalism. Thomas claims that our received notions of rights and duties in law are rife with racial implications. This is particularly the case given the highly charged racial context within which notions of rights and duties were developed, who they were meant to exclude, and our societal struggle to make the law “color-blind.” In this context, abstract notions of citizen, government, rights, and duties do not begin to account for the relationship between people of color and their government, people of color and their fellow White citizens, and people of color among themselves, either as traced out in history or in contemporary times. Critical race theorists insist that the world is not as de-raced as the law, historically formed by members of the majority race, would have it seem.

I agree with the critical race theorists. We must learn to resist the sentiment that we can somehow rid ourselves of this “race thing.” Such theorizing does damage to our perceptions of social relations, as it attempts to bracket off race in formulating theories of how notions of citizen, law, and the state are constructed. We retard the educational project by failing to come to terms with the enormity of race and how it subsumes us. We standardize race without recognizing that we do it, and this inhibits our efforts to fight racial subjugation. Social science tells us this is the case. “Race becomes 'common sense’ -- a way of comprehending, explaining and acting in the world.” Thomas is right. We are indeed “raced.”

Where I disagree with the critical race theorists is over the intricacies with which the theory is worked out. Critical race theory needs a formulation of race that takes account of White people's realities. It seems to me that the very fact that we confront a “raceless” paradigm, where people are unaware of how race affects their everyday lives, forces us to incorporate this “racelessness” into any critical race theorizing. To some extent this has been done; a fundamental goal of critical race theory has been to expose the ostensibly race-neutral “masks and other disguises” that perpetuate racial oppression. The problem is that in attempting to strip away masks, we have written as thoughcontemporary Whites operate no differently than the dominative racists of the past. We can acknowledge that Whites may indeed believe that their agendas are race-neutral and not merely a pretext for maintaining subordination. To my mind the point of the phrase unconscious racism is that it is unconscious.

Critical race theory does often acknowledge the unconsciousness of White actions; an important goal of the movement is to expose to the law how this unconsciousness leads to acute and nasty realities in the lives of people of color. Yet, I believe that critical race theory has yet to ask itself the much more difficult question -- that is, how to communicate with people who really believe that tools that maintain racial subordination are race-neutral, people who were raised in paradigms of meritocracy and objectivity and who steadfastly maintain that the law is color-blind.

Critical race theory has achieved a profound insight without recognizing its full implications. We need to move beyond a simple recognition of the way in which we have been socialized to think we are “raceless,” to incorporate the implications of that realization into the way that the critical race movement theorizes. Too often, critical race theorists write of unconscious racism while forgetting in the same breath that it is indeed unconscious.

Any formula that would move beyond the present impasse would have to account for this reality. I think such a formulation would recognize that even as we are indeed raced, we are necessarily raced to varying extents. Whether or not we realize we are raced necessarily implicates the extent to which we are raced. As people of color, we have no choice but to be raced. Others have the choice to operate in a paradigm of racelessness, for their racial features constitute society's norms. The White subjects of the social science experiments I described differ from the critical race theorists in their fundamentally different sense of the importance of race in this world.

Some of us are raced, others of us are de-raced, and there is a continuum in between. The ambivalent Whites who struggle with conflicting allegiances of how to conceptualize Blacks seem to be arrayed at various points along this continuum. In the formulation that I propose, critical race theorists should approach each instance of an individual's contact with the law and include the voices of White participants. Then we should theorize about how that individual's perceptions vary depending on race. We should write narratives that incorporate different people's realities.

Indeed, as starkly foreign as critical race theory's premises seem to traditional civil rights scholars, the movement is fundamentally a plea to be let in. Critical race theorists have not abandoned the law. That is simply nota luxury that they can afford. As Matsuda writes, “Ours is a law bound culture. If law is where racism is, then law is where we must confront it.”

Critical race theory in that respect is very much within the law and within the legal academy. It is a plea to legal scholarship to consider some distinct perspectives. Let us in, perhaps on our own terms, but nevertheless let us in. The paucity of communication undermines the very object of critical race theory, which is to bring distinctly different voices into legal analysis. Critical race theory must be careful to apply its own critique of the dominant paradigm to itself. Critical race theorists too write from a position of subjectivity, as we are on a mission to expose what we consider a pretense of objectivity. White attitudes are central to our enterprise not only because of what we as people of color perceive them to be, but also because of what Whites perceive their own attitudes to be. As we argue that our realities have been left out of their stories, do we not then have some responsibility to make sure their realities are not left out of ours?

In the absence of this incorporation of the perspectives of White participants in critical race narratives, it will seem as though we are attacking yesterday's shadows. Our colleagues do not see themselves in the critical race narratives, just as we do not see ourselves in much of their scholarship. Unless there is progress, we can be sure that mainstream civil rights scholars will continue to operate within the paradigm of race neutrality, while those who recognize the significance of race will continue to talk past them.

The biblical metaphor beckons us forward. Scholarly interaction requires us to move beyond the Tower of Babel. We must strive to forge communicative understanding, a shared discourse in which marginalized voices are not only aired but heard.

 


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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