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Vol. 6, No. 5 - July/August 1996 FOCUS: Theory and its Discontents   
Table of contents for this issue  
The Color of the Law
Critical Race Theorists Have Developed Subtle Insights Into Race And Power In America. But Do They Have Anything To Contribute To The Law?
By Larissa Macfarquhar

SEVERAL YEARS AGO, a critical race theorist and a critical legal studies theorist moved to Manhattan at around the same time and swapped stories about their experiences leasing an apartment. The critical legal studies theorist, a white man, had wanted his relationship with his landlords to be trusting and friendly. So, in an effort to avoid intimidating them with his white-male-lawyerness, he handed over $900 in cash the first time he met them and left without a receipt, on the strength of nothing more than a hunch he had that they were nice people.

The critical race theorist, a black woman, thought he was crazy. She, too, wanted interactions with her landlords to be friendly, but her way of dealing with the trust issue was completely different. Wishing to assure them of her worthiness as a tenant, s he made haste to negotiate and sign a finely-printed lease that would specify and formalize their relationship as quickly as possible.

Thus, one of the more interesting splits on the contemporary legal Left. On the one hand, the nice white radical, doing his best not to commodify anybody, eschewing the alienating formalities of contract. On the other hand, the cautious black radical, awa re that, as Georgetown law professor Mari Matsuda has put it, "informality and oppression are frequent fellow travelers." The critical race theorist in question -- Columbia law professor Patricia Williams -- unpacks the apartment anecdote in her 1991 book , The Alchemy of Race and Rights: "I grew up in a neighborhood where landlords would not sign leases with their poor black tenants, and demanded that rent be paid in cash.... Unlike Peter [Gabel, the critical legal theorist], I am still engaged in a portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce."

This kind of analysis is, in a nutshell, what critical race theory is all about: decoding your own experience in order to illuminate how the law is not a neutral or uniform instrument but one that looks and behaves differently, depending on your position in that old race-class-gender matrix, America. It's a school of thought that has emerged in the last fifteen years out of a growing dissatisfaction with both conventional liberal civil rights law and critical legal studies' highly abstruse brand of radica lism.

For the first generation of critical race theorists -- the ones who have tenure now and came of political age during the Sixties -- the story of their evolving thought is about the reevaluation of liberal principles that took place after the ebullience of the civil rights movement gave way to a more pessimistic assessment of the country's willingness to reform. By the mid- to late-Seventies, it had become apparent to them that racism was too ingrained, widespread, and subtle a feature of American life to be neutralized by laws addressing only its more obvious manifestations. Thus, the traditional ideals of integration, color blindness, and equality came to seem inadequate and even counterproductive. Something else would have to take their place. Just as l iberal legal scholars used sociological data to support the civil rights movement, critical race theorists use poststructuralist theory and their own experiences to engage with identity politics. They are the theorists of speech codes, affirmative action, and the resilient race-consciousness of the American university.

THE FIRST CRACKS in the civil rights consensus appeared, in the legal academy at least, in the late Seventies, when legal scholar Derrick Bell began writing a series of articles criticizing Brown v. Board of Education. This was an unthinkably radical thing to do at the time, at least for a liberal: Brown had acquired an almost commandment-like stature in the liberal civil rights community (though not, of course, among black nationalists). Support for integration, as the edi tors of the recently published anthology Critical Race Theory (New Press) recall, had come to "define the difference between being enlightened and being backward."

Criticizing Brown was particularly strange for Bell, who had been very much a part of the civil rights movement and the interracial hopefulness of the Fifties and Sixties. He had entered law school in 1954, the year the Brown decision was handed do wn, and so came to legal consciousness at a time when, as he puts it, "everyone felt, even the most sophisticated, that this racism thing was all over. Even as late as when I first started teaching, I thought, Gee, after this stuff finally ends, I want to get into consumer law." By the mid-Seventies, though, when it was clear that the stuff would actually not be ending any time soon, Bell had become sufficiently disillusioned to begin questioning not just the commitment of individual white people to imple menting racial fairness but the guiding premises of civil rights law itself.

In an influential 1976 article, "Serving Two Masters," Bell advanced the unsettling contention that, in their single-minded determination to push for the principle of integrated schools, civil rights lawyers had largely ignored what black parents -- their clients -- actually wanted, which was not so much integration per se as the chance to give their children a good education. It was a case, Bell argued, of conflict of interest in the attorney-client relationship, but a peculiar sort of conflict in that i t was rooted in the attorneys' otherwise irreproachable idealism. (The conflict also had a financial dimension, Bell pointed out, since the attorneys were usually paid not by the actual plaintiffs but by national civil rights organizations such as the NAA CP, whose larger goals did not always coincide with those of the clients down on the ground.)

In another article from the same period, Bell pointed out that the problems involved in implementing Brown were due not just to overzealous lawyers but to a more insidious and general cultural malaise. Brown had been won, he argued, not chi efly because whites had become convinced that integration was the moral thing to do, but because segregation was becoming embarrassing. At the outset of the Cold War it had become increasingly clear that the United States would have a hard time convincing the potentially communist Third World of the superiority of the American system if it condoned apartheid at home. But then, two decades later, when this neo-imperialist imperative no longer seemed so urgent, support for Brown began to fade.

Bell concluded the article with what would come to be called the "interest convergence thesis": that equality for black people would be achieved only when it appeared to benefit white people as well. "Whites may agree in the abstract that blacks...are ent itled to constitutional protection against racial discrimination, but few are willing to recognize that racial segregation is much more than a series of quaint customs," Bell wrote. "Whites simply cannot envision the personal responsibility and the potent ial sacrifice inherent in [the] conclusion that true equality for blacks will require the surrender of racism-granted privileges." A few years later, this seed that Bell planted began to germinate into critical race theory proper.

IN THE LATE SEVENTIES, at the time he was writing these articles, Bell was teaching a course at Harvard based on his book Race, Racism and American Law (a work that has since become the Ur-text of critical race theory). Then, in 1 980, Bell left to become dean of the law school at the University of Oregon. Rather than hire another black professor to teach the course, Harvard decided to substitute a three-week minicourse on civil rights litigation, which was taught by white faculty.

Naturally, all hell broke loose.

The student Third World Coalition announced a boycott of the minicourse and organized sit-ins to protest Harvard's failure to hire minority faculty. Fortunately for the coalition, a considerable portion of the school's student mainstream was already in a belligerent mood over the issue of the "no-hassle pass" -- the students wanted the right to pass on a question posed by a professor without being publicly harassed and humiliated for it, as was the Harvard custom. The two groups coalesced into an ad hoc a ngry-at-the-faculty alliance which staged big, noisy demonstrations, marched through the sacrosanct faculty library, and took over the dean's office.

For all their drama, the protests made virtually no impact on the administration, so the Third World Coalition organized what it called "the Alternative Course": a program based on chapters from Bell's book, taught by professors of color from other school s. Many of the people this arrangement brought together would become the chief proponents of critical race theory several years later. Charles Lawrence (now at Georgetown), Neil Gotanda (now at Western State University College of Law in California), and R ichard Delgado (now at the University of Colorado) were among the visiting speakers. Mari Matsuda, now a colleague of Lawrence's at Georgetown, took the course as a student. Kimberlé Crenshaw -- now at Columbia -- was one of its organizers.

The movement (its proponents think of it as a movement) began to crystallize a few years later, at a couple of critical legal studies conferences. For some time, proto-critical race theorists had been attending critical legal studies meetings, and had ado pted much CLS theory. But by the mid-Eighties, fault lines separating the mostly white proponents of CLS from their nonwhite allies had begun to appear. The critical legal theorists -- or "crits," as they came to be known -- had disinterred elements of 19 20s legal realism and argued that the legal process is just politics in another form. Since the dictates of precedent are never absolutely determinate, the application of precedent is an interpretive activity rather than a mechanical one. Thus, a judge's decisions are inevitably influenced by his political vision. Following German critical theory and poststructuralism rather than traditional Marxism, moreover, the crits saw law not as a reflection of political struggles that took place "out there," but as an activity that itself contributed to the formulation and perpetuation of power.

Because they saw law as another form of politics, the crits were suspicious of any legal term that purported to be politically neutral, in the sense of applying to all persons equally. One of their prime targets was the notion of rights. Crits saw talk of rights as little more than smoke and mirrors, designed to obscure the persistence of real economic and social inequality -- a way of distracting attention from America's embarrassing history by focusing on its abstract commitments to justice. "It is not just that rights-talk does not do much good," crit Mark Tushnet had written in 1982. "In the contemporary United States it is positively harmful."

To the proto-critical race theorists, though, this total rejection of rights was throwing out the baby with the bath water. They agreed with much of the crits' analysis, but felt that rights had been too important to the history of black empowerment to reject completely. No theory that made nonsense of Rosa Parks's right to sit in the front of the bus could capture the important changes in self-conception that had taken place in the black community during the Fifties and Sixties. In effect, the criti cal race theorists were arguing that some of the basic terms of liberalism, such as rights, could no longer be (or perhaps should never have been) thought of simply as abstract principles -- because they had, in the course of the civil rights movement, ac quired a cultural resonance of their own. Rights, in other words, had ceased to be merely pieces of liberalism's procedural tool kit and had, in becoming encrusted with history, become part of a substantial vision of the good.

Patricia Williams put this best, writing a decade later:

In discarding rights altogether, one discards a symbol too deeply enmeshed in the psyche of the oppressed to lose without trauma and much resistance.... To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.

THE DEBATE OVER RIGHTS was not the only rift that opened between the crits and the soon-to-be critical race theorists. The other had to do with the concept of race itself. Crits, wary of biological fallacies, didn't believe that race exi sted. It was, they felt, no more than a social construction, and an obviously pernicious one at that: yet another obfuscation that distracted from the real business of correcting economic injustice.

To nonwhite crits, though, this line of reasoning was not only unhelpful but insulting to their experience of reality. Race may be a construction, they allowed, but it is no less experientially real for that. They coined an ingenious term to explain what was wrong with their colleagues' analysis: "vulgar anti-essentialism." "It was obvious to many of us," wrote a group of critical race theorists in a manifesto published some years later, "that although race was, to use the term, socially constructed (the idea of biological race is 'false'), race was nonetheless 'real' in the sense that there is a material dimension and weight to the experience of being 'raced' in American society, a materiality that in significant ways has been produced and sustained by t he law."

Some of the white crits, notably Harvard professor Duncan Kennedy and Georgetown professor Gary Peller, agreed with these criticisms and went on to write articles in a critical race theory mode. (Others, such as the late SUNY-Buffalo professor Alan David Freeman, had been doing so for some time.) Nonetheless, the nonwhite crits decided that they needed to develop a critique of their own. In the summer of 1989, Kimberlé Crenshaw, Neil Gotanda, and Stephanie Phillips convened a workshop in a convent in Madison, Wisconsin, under the newly coined rubric "critical race theory."

The workshop was funded by white University of Wisconsin crit David Trubeck, but only nonwhite scholars were invited. The participants needed a "safe space," Crenshaw and Phillips reckoned, to discuss where it was, exactly, that they diverged from the whi te legal Left. Something like forty people showed up at the convent, including critical race godfather Derrick Bell, Patricia Williams, Mari Matsuda, and Charles Lawrence. The meeting was, on purpose, loosely structured -- no manifesto was produced until the next workshop, one year later -- but it was clear that those present had enough in common to form a coherent school of thought. The movement had begun.

CRITICAL RACE THEORISTS nowadays are an eclectic group. Kimberlé Crenshaw, a black woman, writes about the "intersectionality" of race and gender. Mari Matsuda, a Japanese-American woman, analyzes the peculiarities of anti-Asian p rejudice. Lani Guinier, the hapless Clinton nominee whose work shows up in one of the group's anthologies, studies electoral systems. Crenshaw, Kendall Thomas, and Cheryl Harris have worked with women's groups and political movements in South Africa.

But there are a few themes which probably all of them would agree are central to the project. For instance: Racism is normal. It does not, in other words, consist of isolated demonstrations of prejudice by an aberrant minority, but is an ingrained and lar gely unconscious feature of American culture. (This idea, it should be said, is rather easy on whites. If everyone is racist, then the question "Am I a racist?" ceases to be one for individuals to worry about.)

Another basic idea: Words are powerful. Critical race theory, like other variants of academic postmodernism, holds that much of what we experience as reality is actually constructed by, and preserved in, language. This belief leads critical race theorists to take hate speech very seriously and to advocate severe penalties for it. (Charles Lawrence helped to draft the Stanford University speech code). It has also inspired them to experiment with a variety of forms of writing: fiction, fables, autobiography , poetry. In tension with this respect for the power of speech and writing, though, is a skepticism about the liberal hope that racism may be overcome through interracial dialogue.

Above all, the watchword of the critical race movement is context. Critical race theorists argue that whereas traditional liberals believe that the way to achieve fairness is to abstract from circumstance and construct laws that apply to everyone equally, in fact, such supposedly neutral procedures nearly always favor those with greater social or economic power. So in making and applying the law, we should allow ourselves to "know what we know." We know, for instance, that the epithets "dumb nigger" and " stupid white guy" carry very different sorts of cultural freight in an American context, so we should treat them differently in the law.

The phrase "know what we know" was coined by Mari Matsuda, who argues that we should stop trying to develop speech codes that protect all kinds of speech equally -- that of Nazis as much as that of pacifists -- and start acknowledging that we know that ra cists are different. Matsuda believes that we as a culture are so certain about what hate speech is, and so certain that it is bad, that we can allow courts to treat it differently from other kinds of speech without worrying about weakening First Amendmen t protections in general. Of course, a liberal might reply that such an approach to speech regulation would leave defendants too vulnerable to biased judges and juries. It is, indeed, ironic that critical race theory, which developed in response to the in adequacy of judicial remedies in the civil rights era, relies in its theory of hate speech on the assumption that courts are on its side.

Another area where critical race theorists apply their context principle is affirmative action in universities. Here, a non-neutral, historically contextualized approach means focusing on reparation for mistreatment as a primary justification. Such a stra tegy would, critical race theorists believe, give affirmative action a more solid foundation than vague talk of the advantages of diversity (the usual justification for favoring nonwhites in college admissions). In a traditional liberal framework, elevati ng America's history of injustice to the level of foundational legal principle sounds dangerously counterproductive -- institutionalizing the rift between black and white rather than attempting to close it. Paradoxically, though, the critical race line of argument might well imply a far closer bond between the races than does an individualist, color-blind liberalism. That's because the concept of continued historical reparation depends upon a very strong sense of American community. As Matsuda writes, "On e cannot be detached from privilege while enjoying the benefits of this country's high standard of living; in that sense, we are all part of the beneficiary class." Ongoing obligations and guilt make sense only if one assumes a consistent, unified nationa l "we" to which they can be attached. And this is, of course, the same mysterious "we" that is the basis of "knowing what we know."

The call for context seems plausible in the context of hate speech and affirmative action, but transposed into off-campus criminal law, knowing-what-we-know can lead to consequences so radical that even most critical race theorists would not accept them. In criminal law, "knowing what we know" means knowing that a third of young black American men are either in prison or on probation; that policemen are often racist; that drug dealing can be the only viable source of income in inner-city neighborhoods; th at black crack dealers are sentenced more harshly than white dealers of powder cocaine. Needless to say, it is necessary to keep these facts in mind when formulating law and public policy.

But a few controversial theorists believe that contextualized justice needs to be taken one step further. In a recent Yale Law Journal article, for instance, George Washington University law professor Paul Butler (who is not a member of the critica l race theory group but sympathizes with many of its positions) argues that since the judicial system is doing African Americans so little good and so much harm, black jurors should practice jury nullification -- acquitting a black defendant they believe to be guilty -- if the crime in question is nonviolent and, as Butler puts it, malum prohibitum (legally proscribed) rather than malum in se (inherently bad). Shooting a cop is not a nonviolent act; but it is only a small step from Butler's advice to the tactics of the late William Kunstler, who once convinced a jury to acquit a defendant who had wounded six police officers. Kunstler told jurors the case was about "how the police treat young Third World people in the depressed communities of the city."

Regina Austin, a critical race theorist at the University of Pennsylvania (the same professor, incidentally, that Harvard decided not to hire in 1990, prompting Derrick Bell to pledge that he would leave the university until it hired a black woman), advan ces an argument similar to Butler's. "Street women accept the justifiability of engaging in illegal conduct to rectify past injustices and to earn a living," Austin writes, in a maudlin article in the Southern California Law Review celebrating the "defiance, boldness, and risk taking" of crime. She adds: "[We need] a legal praxis [which finds] its reference points in the 'folk law' of those black people who, as a matter of survival, concretely assess what laws must be obeyed and what laws may be ju stifiably ignored."

THE HAZARDS OF "knowing what we know" become all the more apparent in critical race theorists' experimental writing -- notably Patricia Williams's essays, Derrick Bell's latter-day fables, and Richard Delgado's "Rodrigo Chronicles." Wher eas in the movement's more conventional manifestations, "knowing what we know" seems to be a fairly straightforward mandate, at least epistemologically speaking -- a matter of remembering the history of race in this country and detecting its residue in ev en the most neutral-seeming corners of the law -- in the movement's experimental moments, history is replaced by anecdotes and fiction, and both the "knowing" and the "what we know" become far less clear.

In her two books, The Alchemy of Race and Rights (Harvard, 1991) and The Rooster's Egg (Harvard, 1995), Patricia Williams uses stories from her own life -- usually experiences of racism, explicit or implicit -- as grounding for her more theo retical analysis of law and power. Derrick Bell has created a fictional alter ego, a brilliant black female law professor with magical powers by the name of Geneva Crenshaw (no relation to Kimberlé) who appears with a professor character in a serie s of moralistic stories. (One of these, "The Space Traders" -- which describes white America's decision to turn over all black Americans to visiting aliens in return for lots of money and some help cleaning up the environment -- was recently made into an HBO movie starring Robert "Benson" Guillaume.) Richard Delgado has written a series of dialogues between a jaded, old-fashioned black professor and a young radical genius named Rodrigo who's part black, part Latino, and part Italian. In the legal academy, this kind of writing is virtually unprecedented -- it has not by any means achieved the respectability that fictionalized theorizing and autobiography have acquired in some precincts of the humanities.

The purpose of the critical race theory writing experiments is usually described as empowerment through language: the creation of new myths to replace the old, damaging ones -- "counterhegemonic art," to use bell hooks's ponderous term. The idea, as Willi ams puts it, is to "describe a community of context for those social actors whose traditional legal status has been the isolation of oxymoron, of oddity, the outsider." Or, in the words of Delgado: "Critical writers en courage black people to tell and ret ell stories of their own oppression as an antidote to disabling self-doubt and hatred. Through recounting terrible tales of torture, rape, and spirit-murder, we gain healing: We realize that our current low estate is not our fault."

But the writing itself is more complicated than that, and more interesting. Delgado's and Bell's experiments are often quite embarrassing to read -- Williams is the only one of the three with real writerly talent. Yet the fascinating thing about these tex ts is how powerful they are as rhetorical devices, despite their incompetence as fiction. Delgado's chronicles, for instance, are extremely (and usefully) disorienting to a reader accustomed to explicit legal arguments -- partly because it is impossible t o determine where the author (Delgado) stands on the issues being debated by the professor and Rodrigo, and partly because the professor character usurps the reader's customary role as evaluator of arguments.

Williams's writing is even more ambitious. Her intention is not just to insert black experience into legal discourse but also, as she insists, to "reveal the intersubjectivity of legal constructions"; in other words, to unmask law's pretensions to objecti vity and to provide an example of what avowedly subjective legal analysis might look like. To that end, she recounts events from her daily life -- arguing with law review editors, fighting with conservative students, deciding to adopt a child -- and probe s them for political significance. Dealing with her law review editors, for instance, involved convincing them that the fact that she was black was essential to making sense of her story about being locked out of a Benetton store (the editors felt it was irrelevant). Her method of analysis-via-anecdote, Will iams claims, "forces the reader both to participate in the construction of meaning and to be conscious of that process.... I hope that the gaps in my own writing will be self-consciously filled by the reader, as an act of forced mirroring of meaning-invention."

One problem with this approach is Williams herself. She is, in fact, anything but happy at the prospect of a reader filling in her gaps. Hyperconscious as she is of the way stories can be altered by interpretation, she fiercely defends the exclusive rightness of her own point of view. In The Rooster's Egg, for example, she describes having to "recover" after being "put off by the ways people were 'taking' my story."

But the deeper problem with the critical race project of highlighting law's indeterminacy by means of personal storytelling is the fact that autobiography asserts, if anything, a greater claim to objectivity than does conventional legal writing. The latte r, consisting of argument, is at least ingenuous about its desire to persuade, whereas autobiography stakes out the relatively unassailable position of the eyewitness. In attempting, then, to undermine the notion of objectivity with what are, in effect, i mitations of the introspective Discourse on Method, the critical race theorists have got their epistemology backwards: They are, one might say, putting Descartes before the horse. Not to mention that, epistemology aside, personal storytelling barri cades its interpretations behind academic etiquette: Questioning an autobiographer's account is difficult because it sounds like an ad hominem attack.

Even evaluated on its own terms, though, the call for subjectivity in legal interpretations is a dubious proposition. Here, yet again, we are back to the ambiguities of "knowing what we know." As Vanderbilt's Anne Coughlin asks, "What is the value for law of the insight that 'anything that happens to [us] is inherently subjective?' In what kind of legal system would it make no difference whether a woman who claimed that she had been raped was telling the truth?... Without careful theoretical elaboration, Williams's suggestion may be as politically regressive as it is impractical, opening the way for more racist, sexist, homophobic, and class-discriminatory abuses than it mitigates."

If Coughlin's argument isn't clear enough, it becomes so when Williams writes about Tawana Brawley, the black teenager from Wappingers Falls, New York, who in 1987 claimed, falsely, that a group of white men had raped her and smeared her with dog feces, a mong other awful things. Brawley was, Williams writes angrily, "the victim of some unspeakable crime.... No matter who did it to her -- and even if she did it to herself.... Tawana's terrible story has every black woman's worst fears and experiences wrapp ed into it. Few will believe a black woman who has been raped by a white man.... [T]he quiet, terrible, nearly invisible story of her suffering may never emerge from the clamor that overtook the quest for 'what happened' and polarized it into the bizarre and undecidable litigation of 'something happened' versus 'nothing happened.'"

That Brawley was miserable was never in doubt. But Williams here is heading into dangerous territory where a black woman who has been raped by a white man, and a black woman who was unhappy enough to say she was raped by a white man, and even "every black woman" blur together into an even thicker epistemic, mythical fog than they already inhabit: a fog in which events acquire quotation marks, and rape becomes a metaphor, and even the smallest concrete steps toward separating rapists from nonrapists and th e raped from the otherwise miserable appear hopeless and irrelevant.

As one might expect, some of critical race theory's harshest critics are not white. In 1989, black Harvard law professor Randall Kennedy published an influential article, "Racial Critiques of Legal Academia," that attacked, among other things, what he cal led critical race theory's "racial distinctiveness thesis": "the belief...that [their experience of racism] causes minority scholars to view the world with a different perspective from that of their white colleagues; and that this different perspective di splays itself in valuable ways in the work of minority scholars." Kennedy objected to the racial distinctiveness thesis on the grounds that it was essentialist. "Racial classification," he wrote (in a peculiarly passive mode), "has come to be viewed as pa radigmatically offensive to individuality."

The racial distinctiveness thesis is certainly controversial, but not exactly for the reasons Kennedy says it is. It is not essentialist, in a biological or even a cultural sense: that is to say, its proponents are not making the obviously false argument that all black people think alike. But it does advance the equally contentious claim that there is such a thing as a "black perspective" -- one that Clarence Thomas, for instance, does not share.

The concept of "black perspective," as critical race theorists talk about it, involves not one but several ideas. On the less controversial end, "black perspective" simply implies that a first-hand experience of prejudice allows for an understanding of ra cism that is not available in quite the same way to people who have not been discriminated against. (This is simply a banal reminder that we cannot get inside someone else's head and fully comprehend an experience we have not had.)

On the more controversial end, though, the notion of "black perspective" is a bold rhetorical maneuver in which critical race theorists attempt to secure a monopoly on the term "black" for their particular point of view. In this sense, a "black perspectiv e" is one that, as Duke theorist Jerome Culp puts it, "is opposed to racial oppression in the same sense that feminist means opposition to patriarchy and oppression of women."

This maneuver is useful to the critical race theorists for a number of reasons, but especially so because it forms a conceptual bridge between mainstream notions of affirmative action in universities and their own more ambitious agenda. Whereas affirmativ e action has traditionally meant a system that simply encourages the hiring of minority professors, many critical race theorists see it as a means of introducing new political views, as well as new skin colors, into the faculty. Using the notion of "black perspective," they can argue that hiring Clarence Thomas is not -- in any meaningful, political sense -- affirmative action, since Clarence Thomas is not -- in any meaningful, political sense -- black. In other words, talk of a "black perspective" can be a fancy way of calling someone an Oreo: Black conservatives are not merely "wrong"; they are "not really black."

OF ALL THE THEORIES the critical race group has proposed, perhaps the most unsparing is what Derrick Bell calls, in reference to the legal realists, "racial realism." This is a profound, radical pessimism about the possibility of ever el iminating the racist strain in American life: the belief, in short, that racism is permanent. "Black people will never gain full equality in this country," Bell wrote in his 1992 book, Faces at the Bottom of the Well (Basic). "This is a hard-to-acc ept fact that all history verifies. We must acknowledge it, not as a sign of submission, but as an act of ultimate defiance." Not all the critical race theorists explicitly subscribe to this thesis, but it lurks like a kind of Grim Reaper at the periphery of much of their writing.

In one sense, racial realism doesn't fit at all into the usual critical race framework: It's a grand statement about the Nature of Man, of a sort that goes against everything their theorizing has to say about the contingency and constructedness of ideolog y. But on the other hand, it fits very well into critical race theory's poetic, mythmaking side. The declaration that racism is a permanent, almost biological feature of life possesses a rhetorical force that in a strange, counterintuitive way is every bi t as rousing as the old civil rights-era belief that, with just a few more good fights, racism will be over.

It is this paradoxically inspirational quality that theorists like Derrick Bell and Richard Delgado allude to when they are told that their extreme pessimism is counterproductive. Bell, in fact, has gone so far as to propound a whole theory of spiritual d evelopment, centered around the idea that struggle itself -- even if, or perhaps especially if, it is hopeless -- is good for the soul. In Faces, Bell compares the certainty of racism to the certainty of death (though not taxes), and quotes Camus o n the glory of Quixotic defiance: "Man is mortal. That may be; but let us die resisting; and if our lot is complete annihilation, let us not behave in such a way that it seems justice!"

Delgado is not so spiritually inclined as Bell, but he, too, believes that racial realism is the key to renewed effort in a time of diminishing racial expectations. "A typical progressive young person," Delgado explains, "goes to law school wanting to get out and do good. But the burn-out rate for these young lawyers -- who start out as extremely idealistic, hardworking people -- is very high. My hope is that showing young people how to develop their own radical critique of American society will help aver t or at least postpone the kind of disillusion that usually sets in. Derrick Bell receives a lot of criticism for offering despairing scenarios, but there's actually enormous utility in getting the message out about how things really work. Because then pe ople can make their peace with it and carry on -- whether or not the short-term gains they had hoped for are being realized."

"Racism is permanent." Like other critical race theory mantras -- law is subjective; neutrality is political; words are actions -- it's powerful rhetoric and contains a large measure of truth. And yet one is still left wondering whether that truth is ulti mately more useful to the cause of racial justice than the frayed but enduring fictions of liberalism. Critical race theorists have proved innovative mediators between several different strains in academia -- the old, white Left in law schools; the new, m ulticultural Left in the humanities; contemporary work in literary theory -- but for the most part it remains to be seen what would happen if they put their theories into practice. And if Lani Guinier's experience is anything to go by, it will be a long, long time before they get the chance.

Larissa MacFarquhar is a contributing editor of Lingua Franca. She also writes for The Nation, New York, and other publications.


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