Tuesday, July 16, 2019

Abstract

Excerpted from: Melvin J. Kelley IV, Retuning Bell: Searching for Freedom's Ring as Whiteness Resurges in Value, 34 Harvard Journal on Racial & Ethnic Justice 131 (Spring, 2018) (391 Footnotes) (Full Document)

Most assuredly, the plight of African Americans seeking “to obtain freedom, justice, and dignity is as old as this nation.” Today, that struggle continues. The 2017 State of the Union Report compiled by the Stanford Center on Poverty and Inequality confirms profound racial and ethnic disparities across every notable metric, including employment, poverty, housing, education, incarceration, health, earnings, wealth, and intergenerational mobility. In examining the past 35 years, the study unearthed a relatively stable portrait of “two Americas”: a high-poverty America occupied by Blacks, Hispanics, and Native Americans, and a comparatively low-poverty America where Whites reside. Many of the legal victories procured from the Civil Rights Movement that appeared poised to usher in a new era marked by racial equality, have since been substantially curtailed through recent Supreme Court decisions

Of particular note, the Court recently overturned a key provision of the Voting Rights Act of 1965 (VRA), thereby removing a critical tool to combat racial discrimination in voting. Under Section 5 of the landmark civil rights law, jurisdictions with a history of discrimination were required to seek pre-approval of changes in voting rules that could affect minorities. This process, known as “preclearance,” blocked discrimination before it occurred. In Shelby County v. Holder, the Court invalidated Section 4-- which determines the states and localities covered by Section 5--arguing that current conditions require a new coverage formula. In the run-up to the 2016 presidential election, a wave of state restrictive voter legislation swept across the nation. It marked the first presidential contest in 50 years without the full protections of the VRA, prompting speculation about a direct link between the Court's decision and the outcome. Nonetheless, what does seems clear is that one would be hard pressed to explain the rise of President Trump without acknowledging the persistence of White supremacy and our nation's enduring commitment to White dominance. As promised, Trump's administration has wasted little time in implementing policies that operate to the detriment of historically oppressed groups

In light of the foregoing, the time is particularly ripe for revisiting the theoretical contributions from Critical Race Theory (CRT) as a means of ascertaining our current predicament and developing a potential framework to inform possible next steps on the path to racial justice. As a radical left, intellectual and political movement, CRT is committed not only to exposing the perseverance of White racial privilege, notwithstanding the advent of laws formally prohibiting discrimination, but moreover to advancing the cause of racial emancipation

In more recent years, a new generation of critical race scholarship known as Empirical Methods and Critical Race Theory (e-CRT) has emerged in legal academia. Unlike the forging of CRT itself, e-CRT was not sparked in the heat of a theoretical battle. Rather, its inception as a distinct movement can largely be traced to a series of workshops convened by Professors Laura Gomez and Osagie K. Obasogie that gathered scholars for the purpose of addressing “an unacknowledged schism between critical race scholarship and the social sciences.” The ensuing project thus seeks to “change the premise of race scholarship in general by eschewing theoretical and methodological silos in pursuit of deepening our understanding of race and racism to advance racial justice.”

This Article therefore aims to bring the insights of e-CRT to bear in reevaluating a seminal CRT theory that offers an assessment of the sociopolitical, economic, and legal mechanisms inhibiting the prospects for racial progress: the late Professor Derrick Bell's interest-convergence dilemma, which proposes that “[t]he interests of [B]lacks in achieving racial equality will be accommodated only when it converges with the interests of [W]hites.” Since it was first introduced, Bell's interest convergence theory has gained widespread eminence in legal scholarship. The tenets of the thesis have become a cornerstone in explaining the outcome in Brown. Yet the theory's application has not been limited to cases involving the Equal Protection Clause or even to legal developments explicitly impacting people of color. Instead, it has been wielded to account for judicial interpretation of the First Amendment's religious clauses as it relates to non-Christian groups; decipher the policy implications prompting state legislative abolishment of the death penalty; and assess the prospects for building coalitions to advance animal rights

Despite its renown, Bell's theory has not been embraced in all circles. Indeed, Professor Justin Driver charged: “Given the theory's prominence within the legal academy and beyond, it is surprising that virtually no sustained scholarly attention has been dedicated to examining the interest-convergence thesis, the assumptions that undergird the thesis, and the consequences that flow from accepting the thesis.” Accordingly, Driver took up the task of initiating a “critical” and “long overdue” discussion of the interest-convergence theory. Though the framework was not expressly referenced, Driver already inadvertently launched an engagement between e-CRT and interest convergence when he undertook his critical examination of Bell's thesis. Specifically, Driver argued that Bell's thesis suffered from at least four analytical flaws that severely diminished its persuasiveness:

First, the theory's overly broad conceptualization of “[B]lack interests” and “[W]hite interests” obscures the intensely contested disputes regarding what those terms actually mean. Second, the interest-convergence theory incorrectly suggests that the racial status of [B]lacks and [W]hites over the course of United States history is notable more for continuity than for change. Third, the interest-convergence theory accords insufficient agency to two groups of actors--[B]lack citizens and [W]hite judges--who have played, and continue to play, significant roles in shaping racial realities. Fourth, the interest-convergence theory cannot be refuted and, thus, cannot be examined for its validity because it accommodates racially egalitarian judicial decisions either by contending that they are necessary concessions in order to maintain [W]hite racism or by ignoring them altogether

For ease of reference, this Article refers to the four challenges outlined above individually as the critiques of: (1) undefined interests, (2) progress minimization, (3) diminished agency, and (4) equivocal substantiation. Driver further noted that these analytical flaws could potentially engender harmful consequences in the form of limiting strategies for advancing racial equality and promoting racial conspiracy paranoia in the Black community. These criticisms did not go unnoticed. Professor Steven Feldman promptly responded with a defense of Bell's work, insisting that Driver's analysis was deeply flawed because it mischaracterized interest convergence as “future-oriented,” rather than as a historical proposition

Overall, Feldman's responses only partially address Driver's critiques. Moreover, his contention that Bell's theory is chiefly concerned with historical developments and as such, simply presents a reasonable “reading of history,” is wholly untenable. Driver's critiques regarding undefined interests and equivocal substantiation, are particularly salient and warrant fuller responses. Notably, both of these criticisms marshal social scientific principles to challenge the interest-convergence thesis. Feldman's responses, though incomplete, also used social science to defend Bell's theory. Therefore, their engagement with Bell's work is appropriately characterized as resounding in the realm of e-CRT

Rather than either wielding e-CRT to dismantle interest convergence theory like Driver or defending its current incarnation like Feldman, this Article seeks to use its insights to retune and bolster Bell's work. Thus far, one major manifestation of e-CRT scholarship has entailed efforts to grapple with the best approach for defining or “operationalizing” the concepts embedded in CRT's theoretical contributions so that social scientists are better situated to conduct studies that can verify or refute the accuracy of these theorems. Though the merits of e-CRT and its projects have been questioned, the moment appears poised for empirical inquiries of interest convergence theory. As such, this Article responds to the lingering implications of Driver's undefined interests and equivocal substantiation critiques by offering some thoughts on we might go about defining “Black interests” and “White interests” from a theoretical per-spective, which in turn, enhances the theory's susceptibility to empirical testing

To this end, this Article argues that interest convergence would benefit from fusion with Professor Cheryl Harris' concept of Whiteness as property. This analysis proceeds in three parts. Part I provides a fuller introduction to Bell's theory of interest convergence. Primarily, this will entail a review of the article that introduced the concept. However, the roots of the interest convergence theory are plainly discernible in Bell's earlier writings. Moreover, since it was initially unveiled, Bell often revisited this theory in subsequent writings. Accordingly, a full appreciation of the thesis could not be gleaned without drawing from a broader spectrum of Bell's work. After providing an overview, this Part lays out the recent criticisms and defenses of interest convergence

In laying out the contours of the debate on the merits of interest convergence, this Article notes that two of the analytical flaws identified by Driver, are at least arguably, unaddressed. Specifically, the undefined interests and equivocal substantiation critiques, which collectively assert that Bell never offered a comprehensive definition of “White interests” and “Black interests,” which in turn, has contributed to questions for assessing the theory's viability. These concerns appear to dovetail with the e-CRT movement, which seeks to bring empirical methods to bear in evaluating CRT's theoretical contributions. This Article does not undertake an empirical study of interest convergence, but seeks to employ these insights to develop a more robust and comprehensive theoretical model. Therefore, Part I concludes by arguing that the deficiencies unearthed under an e-CRT lens could and should be addressed by merging Harris' conception of Whiteness as property with the interest convergence framework

As such, Part II provides a recap of Harris' theory. Through her scholarship, Harris advanced the claim that American law recognizes a property interest in Whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated. Harris traced the origin of this property interest to the era of slavery when “[W]hiteness defined the legal status of a person as a slave or free.” Then and hence, “[W]hite identity conferred tangible and economically valuable benefits,” and as such, “the right to [W]hite identity as embraced by the law” was properly cognizable as a form of property. Read closely, Bell's thesis is a synergistic corollary of Harris' work. Bell asserted that “White interests” constitute the preservation of “racism granted privileges for Whites,” which are encapsulated by Harris' vision of Whiteness as property. Moreover, he likewise concluded that this “background” is directly impacting the prospects of procuring effective legal remedies for addressing racial injustices

Once White interests are equated with maintaining the value of Whiteness, then it becomes clear that racial progress is only viable if: (1) Blacks gain access to Whiteness and/or (2) Whiteness itself is diminished in value. Yet interest convergence suggests that the second option is, at best, highly unlikely. Thus, the key to fusing these two theories lies in reconfiguring Harris' theory so as to accommodate a vision of Whiteness as alienable property. Part II argues that the experience of ethnic immigrants indicates that whiteness was effectively sold to qualifying groups through the process of assimilation. Tracing the terms of the contract reveals “restraints on alienation” which appear to disqualify people of color from ever purchasing Whiteness. In light of basic economic principles, it is hardly surprising that Whiteness would be subject to a racially “restrictive covenant.” After all, there would have to be a mechanism for maintaining its value via the exclusion of Blacks and other people of color

Nonetheless, it does seem that a narrow segment of people of color have been granted “revocable licenses” which provide limited access to benefits generally reserved for owners of Whiteness. Ultimately, the rules of interest convergence suggest that these concessions, both with respect to transferring Whiteness to ethnic immigrants as well as the issuance of revocable licenses to qualifying minorities, are not the product of efforts to advance justice and equality. Instead, access to Whiteness will only be provided when it yields political, economic, social or psychological benefits to owners of Whiteness. As such, the license is revocable whenever the associated benefits are no longer sufficient to justify the permission to access Whiteness

In Part III, I introduce this hybrid theoretical paradigm, which I dub the Whiteness-Bell Curve. The name not only provides homage to the work of Bell and Harris, but also captures what the revocable license model of racial progress would look like if mapped over time--a series of bell curves delineating times of progress and regression. I then draw some implications from its operation. Most notably, it suggests that Black interests, much like “White interests” as conceived by Bell, are currently skewed in favor of the group's elites. When examined at the intersection of race and class, it is clear that affluent Blacks are likely to be the primary beneficiaries of “revocable licenses,” while the utility of these measures has, at best, proven marginal to poor Blacks. In turn, this means that a definition of Black interests must recognize this class dynamic. Read closely, Bell's theory was particularly concerned about the plight of poor Blacks and therefore he evaluated the effectiveness of racial remedies in accord with how they substantively impacted the quality of their lives, not just Black elites

Even still, this skewed landscape outcome is not surprising given that litigation, as a tool of the elites, is ill-equipped to accommodate the redistributive measures that are necessary to eliminate the property interest in Whiteness and truly advance racial equality. As a result, the legal victories procured in the civil rights movement have had less import to poor Blacks. Building on this observation, it seems that the primary utility of discerning other federal constitutional claims, including those unearthed by this new paradigm, lies not in procuring more robust judicial remedies, but in their potential to inspire future social justice movements. The Article concludes with another historical illustration of the Whiteness-Bell Curve to demonstrate the importance of intra and intergroup solidarity in moving the racial justice agenda forward


[. . .]

 

This Article has advanced the argument that moments of racial progress could be understood through the rubric of the Whiteness-Bell Curve, an amalgamated hypothesis forged in a fusion between interest convergence and Whiteness as property. It began with the observation that Driver's undefined interests and equivocal substantiation critiques, particularly when viewed through the prism of new developments in e-CRT, suggested that Bell's interest-convergence theory could benefit from incorporating Harris' conception of Whiteness as property as a benchmark for operationally defining White interests. This reconfiguration meant that racial progress could only be conceptualized as occasions whereupon: (1) the oppressed group either gained access to Whiteness itself or (2) directly abrogated Whiteness itself

Yet, the first rule of the interest convergence theory posited that the interest of Blacks in achieving racial equality will be accommodated only when that interest converges with the interests of Whites. Accordingly the second option was, at minimum, far less likely. Revisiting Harris' vision of Whiteness as property with a focus on the experience of White ethnic immigrants revealed that Whiteness is indeed alienable and had been transferred through a contract of sale premised on assimilation. Carefully reviewing the terms of the proverbial sale indicated that a racially restrictive covenant operated to preclude people of color from purchasing Whiteness. Accordingly, any access to Whiteness for people of color would resemble a license because it would only afford permission to use a subset of the rights reserved for owners of Whiteness. Moreover, the license would be revocable pursuant to the second rule of the interest-convergence theory, which holds that racial remedies are subject to nullification when they no longer comport with the interests of Whites

The ensuing Revocable License Model of Racial Progress broadly suggested that: (1) moments of racial progress are occasions whereupon the oppressed group gained access to Whiteness; (2) access to Whiteness is only permitted under terms that will not abrogate its value; and (3) such access is revocable if it diminishes the value of Whiteness without a sufficient offset in political, economic, social, or psychological benefits. The question thus arises as to how we might move beyond the constraints of the Whiteness-Bell Curve. Throughout this Article, it has been suggested that this is highly unlikely due to the operation of Bell's rules

Moreover, the three-caste racial system in Antebellum Louisiana highlighted precisely why the Revocable License Model endures. By granting privileges to Black “elites,” the system ensures that a critical mass of allies cannot form to challenge Whiteness itself. However, Antebellum Louisiana was not the only three-caste system to have developed historically: the former French colony of St. Domingue, now known as Haiti, was also subjected to this system prior to having procured independence. There; however, the free coloreds ultimately joined the slaves in a revolution and forced the masters to leave. In Professor Foner's account the key difference was that Whites of St. Domingue pushed too far in their oppression of the free people of color: “[T]he [W]hites were so blinded by the importance of preserving their own superior position as a race that they refused this offer of class cooperation and clung rigidly to the other thrust of the three-caste system: the color line.”

There is some indication that the modern day resurgence in the value of Whiteness is indeed mobilizing new alliances, but further inroads are needed toward unifying the interests of Blacks and other oppressed groups if we ever hope to move beyond the confines of the Whiteness-Bell Curve. To the extent that allies purport to be supportive, their interests will also have to comport with a call for nothing less than the full annihilation of Whiteness itself. Advancing the racial justice agenda will require a movement built on the “principle of the indivisibility of liberty, so that the masses recognize that no matter where liberty is challenged, no matter where oppression lifts its head, it becomes the business of all the masses.” Only then, will we have a critical mass of the oppressed who are willing to reject settling for a revocable license and join the fight to destroy Whiteness. We must be willing “to struggle together, to go to jail together, to stand up for freedom together.” Otherwise, Freedom's ring will never fully resound and reverberate in communities of color

 


Elizabeth Ann Zitrin Teaching Fellow at Northeastern University School of Law.

 

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