President Clinton and others who found Lani Guinier’s academic writings radical might shudder to read the work of an increasingly influential group of scholars of law, race, and racism.
The scholars, who are known as “critical race theorists,” have for a decade been producing startling analyses of racial inequity. Ms. Guinier, a professor of law at the University of Pennsylvania whose nomination as Assistant Attorney General for civil rights was withdrawn by the President amid much controversy, is allied with the group -- but she is clearly among its more traditional members.
Critical race theorists ask whether such cherished and supposedly neutral tenets of American society as privacy, federalism, and meritocracy in fact serve to subordinate minority racial groups. Many disparage the prevailing free-speech doctrine that racial-hate speech is protected by the Constitution, and some have proposed bans on campus hate speech.
“The key question for critical race theorists is whether legal doctrine is actually transforming race relations in this country, or maintaining the existing order,” says Linda S. Greene, a professor of law at the University of Wisconsin at Madison.
Adds Richard Delgado, a professor of law at the University of Colorado: “All of us in one way or another are reaching for a new understanding of the racial situation in the United States.”
Inherent in that undertaking, he says, is dissatisfaction with the traditional liberal belief that racial justice can be attained if laws are applied fairly and if some remedies, such as affirmative action, are permitted. “That model is worn out,” Mr. Delgado says. “We’re beginning to realize there are built-in cultural limits to what it can achieve.”
Critical race theory is not a monolithic doctrine, and some of its key figures are as yet only half-convinced that the work has enough cohesiveness to be called a movement. Mr. Delgado and others, however, identify common features in critical race theory.
* It takes as a given that racism is not a series of isolated acts, but is endemic in American life, deeply ingrained legally, culturally, and even psychologically.
* It reinterprets civil-rights law in the light of its ineffectuality, showing that laws to remedy racial injustices are often undermined before they can fulfill their promise.
* It portrays the traditional claims of the legal system to neutrality, objectivity, color blindness, and meritocracy as camouflages for the self-interest of dominant groups in American society.
* Instead, it insists on subjectivity and advocates that legal doctrines be reformulated to reflect the perspectives and experiences of the “outsider groups” that experience racism first hand.
Another feature of much of the writing is the use of story-telling, first-person accounts, and other elements not found, or welcomed, in traditional legal writing.
Just how effective this departure can be is demonstrated by Patricia J. Williams, a law professor at Columbia University. She opens The Alchemy of Race and Rights (Harvard University Press, 1991), by describing herself sitting in bed in an old bathrobe, disgruntled, as she reads a case from the law of defective merchandise. It dates from 1835 and involves a dispute over whether a slave, named Kate, was insane -- i.e., defective -- at the time of her sale.
From there, Ms. Williams constructs what she calls a “jurisprudence of rights,” showing through an analysis of American history and culture how racism and sexism reside not just in actions but also in thoughts and words, beyond the reach of the law. To do this, she engages in a multidisciplinary critique of racial attitudes. Along the way she uses anecdotes, allegories, dreams, and other elements of oral story-telling traditions. She also uses the rhetorical devices of a trial lawyer, which she used to be.
The book has been acclaimed not only by critical race theorists, but also by more mainstream legal scholars. Ms. Williams notes, in an interview, that her reception was not always so positive. “When I started my career,” she quips, “I recall a law-review editor telling me, `We are not the National Enquirer of law reviews.’”
Equally un-law-review-like is the writing of Derrick A. Bell, Jr., a visiting professor of law at New York University who has been the central figure in the emergence of critical race theory. He is the author of, among other works, And We Are Not Saved: The Elusive Quest for Racial Justice (BasicBooks, 1987) and Faces at the Bottom of the Well: The Permanence of Racism, (BasicBooks, 1992).
His legal fables and Socratic dialogues between a Professor Bell and a fictional “lawyer-prophet,” Geneva Crenshaw, are designed to strip away the deceit and false optimism that he believes confound discussions of race.
The literary schemes of Mr. Bell’s writing make for irony. For a start, his writing, however unlike traditional legal articles, is generously footnoted with legal and other citations. And the fictional Professor Bell clearly is more optimistic than the real one.
In one fable, Geneva Crenshaw proposes a “racial-preference licensing act” to finance minority civic projects by selling licenses to whites to discriminate openly. The clear suggestion is that society will never rid itself of racism, and that the best that can be done is to make racial prejudice generate opportunities for its victims.
Critics praise Mr. Bell, who in 1969 became Harvard Law School’s first black professor, for analyses that, while sobering and pessimistic, also lift readers’ spirits by telling it as it is.
Forsaking traditional legal writing, Mr. Bell contends, makes his writing more, not less, valid: “It is closer to the real world,” he says. “It is traditional scholarly writing that is other-worldly.”
Critical race theorists argue that story telling and other departures from traditional legal writing in fact amount to “counter-story telling": They correct a majoritarian story of justice that is embodied in legal doctrine.
“Many Critical Race theorists,” Mr. Delgado wrote in a recent law-review article, “consider that a principal obstacle to racial reform is majoritarian mindset -- the bundle of presuppositions, received wisdoms, and shared cultural understandings persons in the dominant group bring to discussions of race.” Critical race theorists attempt to jog that mindset.
Critical race theory developed in the 1970’s, in part because minority scholars thought they were being overlooked in critical legal studies, a better-known movement that examines the way law encodes cultural norms. The new writing also borrows from many intellectual traditions, including Marxism, the sociology of law, feminism, postmodernism, and psychology.
The movement also has its detractors. A crucial step in the emergence of the new writing was public debate in 1989 over claims in a law-review article by Randall L. Kennedy, a Harvard University law professor. Commenting on the work of key figures, Mr. Kennedy, who is black, wrote: “Stated bluntly, they fail to support persuasively their claims of racial exclusion or their claims that legal academic scholars of color produce a racially distinctive brand of valuable scholarship.” In debate over the article, critical race theorists were accused of “playing the race card,” of elevating writers’ race and personal history above their arguments.
The charge that there is no substantiation for a distinct “voice of color,” Ms. Williams says, betrays ignorance of much scholarship on African American history and oral and intellectual traditions.
Other critics argue that, however interesting some of the critical race writing may be, it shouldn’t qualify as legal scholarship. Ms. Greene of Wisconsin sharply disagrees: “We should judge scholarship by the ability of the work to provoke new ideas about legal doctrine,” she argues.
Most controversial have been the calls for prohibiting racial hate speech. In a just-released work, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview Press), four leading advocates of bans point out that, in the United States, many forms of speech are prohibited because they do harm -- defamation, false advertising, and obscenity, for example. Yet the United States remains almost alone in the world in providing governmental protection of racial hate speech, in defiance of international treaties.
Why, the authors ask, should acts of speech not also be banned that create victims who are psychologically and physically traumatized by “racist assailants who employ words and symbols as part of an integrated arsenal of weapons of oppression and subordination”?
Mari J. Matsuda, a former student of Mr. Bell’s and now a professor of law and of Asian-American studies at the University of California at Los Angeles, writes in the book: “Tolerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay.”
Critical race theorists say the recent vilification of Ms. Guinier shows how difficult it will be for them to be heard and to reformulate American law to reflect better the lives of racial minorities.
Mr. Bell says even the increasing attention to critical race theorists is “easy to overplay.” Yes, he says, law reviews publish the writing, but not that much of it. And the writing really hasn’t influenced courts. Even the most optimistic of the new theorists see their “outsider” perspectives filtering down to the courts only very slowly.
Mr. Bell, for one, certainly is not optimistic. He suggests that minority groups will always be sacrificed for the interests of the majority culture, as, he says, they always have been. In one of his fables, “The Space Traders,” spacemen come to earth and make a bargain: They will solve all the economic, environmental, and energy problems in the United States, provided they get, in return, all black Americans. Very quickly, they get them.