Critical Race Theory Critical Race Theory T h e C u T T i n g e d g e T h i r d e d i T i o n T e m p l e U n i v e R s i T y p R e s s p h i l a d e l p h i a Edited by Richard Delgado and Jean Stefancic Temple UniveRsiTy pRess philadelphia, pennsylvania 19122 www.temple.edu/tempress Copyright © 2013 by Temple University all rights reserved published 2013 library of Congress Cataloging-in-publication data Critical race theory : the cutting edge / edited by Richard delgado and Jean stefancic. — Third edition. pages cm includes bibliographical references and index. isBn 978-1-4399-1060-3 (cloth : alk. paper) — isBn 978-1-4399-1061-0 (paperback : alk. paper) — isBn 978-1-4399-1062-7 (e-book) 1. Race discrimination—law and legislation—United states. 2. Race discrimination—United states. 3. Critical legal studies—United states. 4. United states— Race relations—philosophy. 5. Racism in language. i. delgado, Richard, editor of compilation. ii. stefancic, Jean, editor of compilation. KF4755.C75 2013 342.7308 ′ 73—dc23 2012043418 The paper used in this publication meets the requirements of the american national standard for information sciences—permanence of paper for printed library materials, ansi Z39.48-1992 printed in the United states of america 2 4 6 8 9 7 5 3 1 Contents acknowledgments xiii introduction 1 suggested Readings 4 PART I CRiTiQUe OF liBeRalism 7 1 after We’re Gone: prudent speculations on america in a postracial epoch • Derrick A. Bell, Jr. 9 2 The Chronicles, my Grandfather’s stories, and immigration law: The slave Traders Chronicle as Racial history • Michael A. Olivas 15 3 The new Racial preferences • Devon W. Carbado and Cheryl I. Harris 25 4 When the First Quail Calls: multiple Consciousness as Jurisprudential method • Mari J. Matsuda 31 5 a Critique of “Our Constitution is Color-Blind” • Neil Gotanda 35 6 liberal mcCarthyism and the Origins of Critical Race Theory • Richard Delgado 38 7 Forbidden Conversations on Race, privacy, and Community • Charles R. Lawrence III 47 From the editors: issues and Comments 59 suggested Readings 59 PART II sTORyTellinG, COUnTeRsTORyTellinG, and naminG One’s OWn RealiTy 61 8 property Rights in Whiteness: Their legal legacy, Their economic Costs • Derrick A. Bell, Jr. 63 9 storytelling for Oppositionists and Others: a plea for narrative • Richard Delgado 71 vi • Contents 10 The Richmond narratives • Thomas Ross 81 11 Translating Yonnondio by precedent and evidence: The mashpee indian Case • Gerald Torres and Kathryn Milun 90 12 alchemical notes: Reconstructing ideals from deconstructed Rights • Patricia J. Williams 97 13 a Furious Kinship: Critical Race Theory and the hip-hop nation • andré douglas pond cummings 107 From the editors: issues and Comments 120 suggested Readings 120 PART III RevisiOnisT inTeRpReTaTiOns OF hisTORy and Civil RiGhTs pROGRess 123 14 documents of Barbarism: The Contemporary legacy of european Racism and Colonialism in the narrative Traditions of Federal indian law • Robert A. Williams, Jr. 125 15 desegregation as a Cold War imperative • Mary L. Dudziak 136 16 liberal mcCarthyism: how Four Radical professors lost Their Jobs and how Their displacement Contributed to the dissemination of Critical Thought • Richard Delgado 147 17 The “Caucasian Cloak”: mexican americans and the politics of Whiteness in the Twentieth-Century southwest • Ariela J. Gross 154 18 did the First Justice harlan have a Black Brother? • James W. Gordon 167 From the editors: issues and Comments 174 suggested Readings 174 PART IV CRiTiCal UndeRsTandinGs OF The sOCial sCienCe UndeRpinninGs OF RaCe and RaCism 177 19 Words That Wound: a Tort action for Racial insults, epithets, and name-Calling • Richard Delgado 179 20 law as microagression • Peggy C. Davis 187 21 implicit Bias, election 2008, and the myth of a postracial america • Gregory S. Parks and Jeffrey J. Rachlinski 197 22 Trojan horses of Race • Jerry Kang 211 23 Working identity • Devon W. Carbado and Mitu Gulati 223 24 The social Construction of Race • Ian F. Haney López 238 25 Cracking the egg: Which Came First—stigma or affirmative action? • Angela Onwuachi-Willig, Emily Houh, and Mary Campbell 249 Contents • vii From the editors: issues and Comments 255 suggested Readings 255 PART V CRime 259 26 Race Ipsa Loquitur : Of Reasonable Racists, intelligent Bayesians, and involuntary negrophobes • Jody D. Armour 261 27 The new Jim Crow • Michelle Alexander 273 28 Racially Based Jury nullification: Black power in the Criminal Justice system • Paul Butler 282 29 Race and self-defense: Toward a normative Conception of Reasonableness • Cynthia Kwei Yung Lee 291 From the editors: issues and Comments 298 suggested Readings 298 PART VI sTRUCTURal deTeRminism 301 30 serving Two masters: integration ideals and Client interests in school desegregation litigation • Derrick A. Bell, Jr. 303 31 The id, the ego, and equal protection: Reckoning with Unconscious Racism • Charles R. Lawrence III 312 32 images of the Outsider in american law and Culture: Can Free expression Remedy systemic social ills? • Richard Delgado and Jean Stefancic 323 33 Race and the U.s.-mexican Border: Tracing the Trajectories of Conquest • Juan F. Perea 333 From the editors: issues and Comments 342 suggested Readings 342 PART VII RaCe, seX, Class, and TheiR inTeRseCTiOns 345 34 Race and essentialism in Feminist legal Theory • Angela P. Harris 347 35 a hair piece: perspectives on the intersection of Race and Gender • Paulette M. Caldwell 360 36 From practice to Theory, or What is a White Woman anyway? • Catharine A. MacKinnon 370 37 The employer preference for the subservient Worker and the making of the Brown-Collar Workplace • Leticia M. Saucedo 375 From the editors: issues and Comments 384 suggested Readings 384 viii • Contents PART VIII essenTialism and anTiessenTialism 387 38 “The Black Community,” its lawbreakers, and a politics of identification • Regina Austin 389 39 Traces of the master narrative in the story of african american–Korean american Conflict: how We Constructed “los angeles” • Lisa C. Ikemoto 399 40 Obscuring the importance of Race: The implication of making Comparisons Between Racism and sexism (or Other -isms) • Trina Grillo and Stephanie M. Wildman 408 41 a house divided: The invisibility of the multiracial Family • Angela Onwuachi-Willig and Jacob Willig-Onwuachi 416 From the editors: issues and Comments 426 suggested Readings 426 PART IX Gay-lesBian QUeeR issUes 429 42 Gendered inequality • Elvia R. Arriola 431 43 sexual politics and social Change • Darren Lenard Hutchinson 434 44 Racing the Closet • Russell K. Robinson 438 From the editors: issues and Comments 453 suggested Readings 453 PART X BeyOnd The BlaCK-WhiTe BinaRy 455 45 The Black-White Binary paradigm of Race • Juan F. Perea 457 46 Toward an asian american legal scholarship: Critical Race Theory, poststructuralism, and narrative space • Robert S. Chang 466 47 Race and erasure: The salience of Race to latinos/as • Ian F. Haney López 479 48 mexican americans and Whiteness • George A. Martinez 488 49 a Rage shared by law: post–september 11 Racial violence as Crimes of passion • Muneer I. Ahmad 492 50 in defense of the Black-White Binary: Reclaiming a Tradition of Civil Rights scholarship • Roy L. Brooks and Kirsten Widner 499 51 Racial Classification in america: Where do We Go from here? • Kenneth Prewitt 511 From the editors: issues and Comments 521 suggested Readings 521 Contents • ix PART XI CUlTURal naTiOnalism and sepaRaTism 523 52 Rodrigo’s Chronicle • Richard Delgado 525 53 much Respect: Toward a hip-hop Theory of punishment • Paul Butler 533 54 legal violence and the Chicano movement • Ian F. Haney López 546 55 demise of the Talented Tenth: The increasing Underrepresentation of ascendant Blacks at selective higher education institutions • Kevin Brown and Jeannine Bell 550 56 law as a eurocentric enterprise • Kenneth B. Nunn 555 From the editors: issues and Comments 562 suggested Readings 562 PART XII inTeRGROUp RelaTiOns 565 57 embracing the Tar Baby: lat-Crit Theory and the sticky mess of Race • Leslie G. Espinoza and Angela P. Harris 567 58 Our next Race Question: The Uneasiness Between Blacks and latinos • Jorge Klor de Alva, Earl Shorris, and Cornel West 574 59 afro-mexicans and the Chicano movement: The Unknown story • Tanya Katerí Hernández 580 60 Beyond Racial identity politics: Toward a liberation Theory for multicultural democracy • Manning Marable 586 61 Rethinking alliances: agency, Responsibility, and interracial Justice • Eric K. Yamamoto 593 From the editors: issues and Comments 601 suggested Readings 601 PART XIII leGal insTiTUTiOns, CRiTiCal pedaGOGy, and minORiTies in The laW 603 62 The Civil Rights Chronicles: The Chronicle of the devine Gift • Derrick A. Bell, Jr. 605 63 The imperial scholar: Reflections on a Review of Civil Rights literature • Richard Delgado 615 64 Who is excellent? • Mari J. Matsuda 622 65 Complimentary discrimination and Complementary discrimination in Faculty hiring • Angela Onwuachi-Willig 629 From the editors: issues and Comments 642 suggested Readings 642 x • Contents PART XIV CRiTiCal RaCe Feminism 645 66 stealing away: Black Women, Outlaw Culture, and the Rhetoric of Rights • Monica J. Evans 647 67 Máscaras, Trenzas, y Greñas : (Un)masking the self While (Un)Braiding latina stories and legal discourse • Margaret E. Montoya 659 68 Converging stereotypes in Racialized sexual harassment: Where the model minority meets suzie Wong • Sumi K. Cho 669 69 Of Woman Born: Courage and strength to survive in the maquiladoras of Reynosa and Río Bravo, Tamaulipas • Elvia Rosales Arriola 679 From the editors: issues and Comments 685 suggested Readings 685 PART XV CRiTiCism and selF-analysis 687 70 Racial Critiques of legal academia • Randall L. Kennedy 689 71 derrick Bell—Race and Class: The dilemma of liberal Reform • Alan D. Freeman 705 72 Telling stories out of school: an essay on legal narratives • Daniel A. Farber and Suzanna Sherry 711 73 a systemic analysis of affirmative action in american law schools • Richard H. Sander 725 From the editors: issues and Comments 738 suggested Readings 738 PART XVI CRiTiCal RaCe pRaXis 741 74 Fidelity to Community: a defense of Community lawyering • Anthony V. Alfieri 743 75 The Work We Know so little about • Gerald P. López 750 76 making the invisible visible: The Garment industry’s dirty laundry • Julie A. Su 758 77 vampires anonymous and Critical Race practice • Robert A. Williams, Jr. 764 From the editors: issues and Comments 771 suggested Readings 771 PART XVII CRiTiCal WhiTe sTUdies 773 78 White by law • Ian F. Haney López 775 79 innocence and affirmative action • Thomas Ross 783 Contents • xi 80 language and silence: making systems of privilege visible • Stephanie M. Wildman with Adrienne D. Davis 794 81 White latinos • Ian F. Haney López 801 82 Rodrigo’s portent: California and the Coming neocolonial Order • Richard Delgado 806 From the editors: issues and Comments 821 suggested Readings 822 Contributors 823 index 831 acknowledgments W e gratefully acknowledge the assistance and cooperation of the many critical race scholars who contributed their work and encouragement. We are espe- cially indebted to the members of the 1993 Critical Race Theory Workshop, where the idea for the first edition of this reader was born. Jason d. macleod performed heroic research in preparing the new edition. Our thanks go to doris Braendel, Janet Francendese, amanda steele, and Temple University press for their continuing support. nanette Bradshaw prepared the manuscript with intelligence and precision. Critical Race Theory Introduction T his book collects the best writing of a new generation of civil rights scholars—the cutting edge of critical race theory (CRT). Here you will find the ironic, chal- lenging Chronicles of the late Derrick Bell, the evocative first-person stories of Patricia Williams, the incisive analysis of the burdens of workplace identity of Devon Carbado and Mitu Gulati. You will read Paul Butler’s startling suggestion that black ju- ries acquit black defendants who are not dangers to the community and his even more striking proposal that society adopt a hip-hop theory of criminal justice. Included as well is James Gordon’s painstaking historical sleuthing that concludes that the first Jus- tice John Marshall Harlan, author of a remarkable dissent in Plessy v. Ferguson , had a black brother. You will read Julie Su’s story of how activists successfully confronted garment-district sweatshops in a contemporary city, Gerald López’s and Anthony Al- fieri’s impassioned defenses of engaged lawyering, and Peggy Davis’s arresting descrip- tion of legal “microaggressions”—those stunning, ambiguous assaults on the dignity and self-regard of people of color. You will read about Latino/a critical (Lat-crit) studies, an emerging subdiscipline within CRT, and the debate over whether a black-white binary paradigm of American antidiscrimination law paradoxically discriminates against Lati- nos and Asians. Lat-crit scholar George Martinez analyzes judicial decisions grappling with whether Mexican Americans are white and concludes that they generally were held to be so when this would hurt the group—but nonwhite when it made no difference. Superstar Ian Haney López weighs in with an analysis of the social construction of race and another piece scolding Latino leaders for cleaving to whiteness. Are radical law professors who spend their hours in the ivory tower vampires? In a supremely satirical article, American Indian law scholar Robert Williams argues that they are and that they should come down from the tower, roll up their sleeves, and join the fray at street level. And in an essay that rivals the best of Tom Wolfe, you will read the late Trina Grillo and Stephanie Wildman’s demonstration of how white people, even ones of goodwill, unconsciously turn discussions about race around so that the con- versation ends up being about themselves! You will read about the atrocities of federal Indian law, the problem of statistical discrimination and what to do about racism that seems “reasonable”—based on statistically valid generalizations about a group—and in- terethnic group alliances and tensions. You will read about black women who chose to wear their hair in braids (and lived to tell the tale) and about those who wear race as a 2 • Introduction mask. You will read about what it is like to be a professor of color trying to win an ap- pointment at a major school or a gay or lesbian of color trying to find a place in the larger civil rights movement. Have you ever wondered how the white race created itself? You will read here Ian Haney López’s surprising answer that the Supreme Court played a large part in that construction. This book is for the reader who wishes to learn about critical race theory, a dynamic, eclectic, and growing movement in the law, and about the emerging writers, many but by no means all of color, who have been challenging racial orthodoxy, shaking up the legal academy, questioning comfortable liberal premises, and leading the search for new ways of thinking about our nation’s most intractable, and insoluble, problem—race. Critical race theory sprang up in the mid-1970s with the early work of Derrick Bell (an African American) and Alan Freeman (a white), both of whom were deeply dis- tressed over the slow pace of racial reform in the United States. It seemed to them— and they were quickly joined by others—that the civil rights movement of the 1960s had stalled and indeed that many of its gains were being rolled back. New approaches were needed to understand and come to grips with the more subtle, but just as deeply en- trenched, varieties of racism that characterize our times. Old approaches—filing amicus briefs, marching, coining new litigation strategies, writing articles in legal and popular journals exhorting our fellow citizens to exercise moral leadership in the search for ra- cial justice—were yielding smaller and smaller returns. As Freeman once put it, if you are up a tree and a flood is coming, sometimes you have to climb down before finding shelter in a taller, safer one. Out of this need came critical race theory, now a body of several hundred leading law review articles and dozens of books, many of which are noted or excerpted in this volume. The movement has predecessors: critical legal studies, to which it owes a great debt; feminism; and continental social and political philosophy. It derives its inspira- tion from the American civil rights tradition, as represented by such leaders as Martin Luther King, Jr., W.E.B. Du Bois, Rosa Parks, and César Chávez, and from nationalist movements, as manifested by such figures as Malcolm X and the Black Panthers. Al- though its intellectual origins go back much further, as a self-conscious entity the CRT movement began organizing in 1989, holding its first working session shortly thereafter. This book grew out of the 1993 annual summer workshop held at Mills College in Oak- land, California, when the group decided to put its energies into producing a reader. The first edition, which appeared in 1995, was adopted in courses in more than one hundred colleges and universities around the world. This third edition builds on the first two but contains much new material, including major sections dealing with crime, gay-lesbian issues, the black-white binary, intergroup tensions, black men who are on the “down low,” and critical race practice and activism. It also includes much new writing by young scholars addressing such issues as workplace identities and the relation of CRT to hip- hop culture and music. CRT begins with a number of basic insights. One is that racism is normal, not aber- rant, in American society. Because it is an ingrained feature of our landscape, racism looks ordinary and natural to persons in the culture. Formal equal opportunity—rules and laws that insist on treating blacks and whites alike (color blindness)—can thus rem- edy only the more extreme and shocking forms of injustice that do stand out. It can do Introduction • 3 little about the business-as-usual forms of racism that people of color confront every day and that account for much misery, alienation, and despair. Critical race theory’s challenge to racial oppression and the status quo sometimes takes the form of storytelling, in which writers analyze the myths, presuppositions, and received wisdoms that make up the common culture about race and that invariably ren- der blacks and other minorities one-down. Starting from the premise that a culture con- structs its own social reality in ways that promote its own self-interest, these scholars set out to construct a different reality. Our social world, with its rules, practices, and assign- ments of prestige and power, is not fixed; rather, we construct it with words, stories, and silence. But we need not acquiesce in arrangements that are unfair and one-sided. By writing and speaking against them, we may hope to contribute to a better, fairer world. A third premise underlying much of critical race theory is interest convergence. Developed by Derrick Bell, this concept holds that white elites will tolerate or encour- age racial advances for blacks only when these also promote white self-interest. Other criticalists question whether civil rights law is designed to benefit folks of color and even suggest that it is really a homeostatic mechanism that ensures that racial progress occurs at just the right pace: Change that is too rapid would be unsettling to society at large; change that is too slow could prove destabilizing. Many question whether white judges are likely to propel racial change, raising the possibility that nonjudicial avenues, such as community action and militancy, may prove more promising. A number of writers employ critical tools to address such classic civil rights issues as federal Indian law, rem- edies for racist speech and hate crimes, and women’s reproductive liberty. In addition to exploring new approaches to racial justice, criticalists have been try- ing out new forms of writing and thought. Many are postmoderns, who believe that form and substance are closely connected. Accordingly, they have been using biography and autobiography, stories and counterstories to expose the false necessity and unintentional irony of much current civil rights law and scholarship. Others have been experiment- ing with humor, satire, and narrative analysis to reveal the circular, self-serving nature of particular legal doctrines or rules. Most mainstream scholars embrace universalism over particularity, and abstract principles and the rule of law over perspectivism (an ap- proach characterized by an emphasis on how it was for a particular person at a particu- lar time and place). Clashing with this more traditional view, CRT writers emphasize the opposite, in what has been termed the “call to context.” For CRT scholars, general laws may be appropriate in some areas (such as, perhaps, trusts and estates or highway speed limits), but political and moral discourse is not one of them. Normative discourse (which civil rights is) is highly fact sensitive, which means that adding even one new fact can change intuition radically. For example, imagine a youth convicted of a serious crime. One’s first response may be to urge severe punishment. But add one fact—he was seen laughing as he walked away from the scene—and one’s intuition changes: Even more serious punishment now seems appropriate. But add another fact—he is mentally im- paired or was abused as a child—and now leniency seems in order. Because civil rights is more like the latter example than the former (highway law), neutral universal principles like formal equality can sometimes be more of a hindrance than a help in the search for racial justice. For this reason, many CRT writers urge attention to the details of minori- ties’ lives as a foundation for our national civil rights strategy.