For Black Scholars Wedded to Prism of Race, New and Separate Goals

By Neil A. Lewis

May 5, 1997

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Taunya Lovell Banks, a law professor at the University of Maryland, was traveling by train to Baltimore a few years ago when a man exposed himself to her and then ran into the next car.

Professor Banks and the conductor discussed what to do, including whether to have the man arrested. The conductor suggested just letting him off at the next stop. And that set Professor Banks to thinking about the circumstances.

She and the man were black; the conductor was white. Would the conductor have treated the matter differently had she been white? What if the conductor had been black? And was the man mentally disturbed because, as a black man, society had pressed him too hard and provided too little help?

An ordinary observer might have regarded what occurred on the train as a relatively simple incident. But Professor Banks is an adherent of a growing academic movement among minority scholars called critical race theory, which holds that people's perspectives on events are overwhelmingly determined by their racial background. For critical race theorists, such incidents are rarely straightforward or what they might seem to others.

Critical race theorists, who are on the faculty at almost every major law school and are producing an ever-growing body of scholarly work, have drawn from an idea made popular by postmodernist scholars of all races, that there is no objective reality. Instead, the critical race theorists say, there are competing racial versions of reality that may never be reconciled.

Many theorists say that because few whites will ever be able to see things as blacks do, real racial understanding may be beyond the nation's reach.

''Critical race theory wants to bring race to the very center of the analysis of most situations,'' said Prof. Anthony E. Cook, an adherent of the theory on the faculty at Georgetown University Law School. ''Its assumption is that race has affected our perception of reality and our understanding of the world -- in almost every way.''

Originating in the nation's law schools, critical race theory has spread far beyond those institutions to become a significant new front in the nation's increasingly fractious culture wars. Supporters and opponents agree that it has a clear and obvious bearing on familiar issues like the legitimacy of ebonics and Afrocentric curriculums, the guilt or innocence of O. J. Simpson and the fairness of affirmative action -- helping to explain how whites and blacks can find themselves quivering with exasperation at each other's view on those issues.

Perhaps most significantly, critical race theory is providing an intellectual foundation for newly flourishing forms of black separateness. Like all intellectual movements, it embraces many ideas and interests, but the most prominent is a reconsideration of the goals and successes of the civil rights movement.

While they do not disapprove of integration that occurs naturally, critical race theorists reject the classic liberal view of integration as the ultimate goal. They deride the concept of a colorblind society.

''Critical race theory counters colorblindness by saying that race is not simply skin color, and it tries to reveal the ways that race is a category that has been structured out of law and culture and history,'' said Prof. Kimberle Crenshaw of the University of California at Los Angeles Law School, an editor of the leading anthology on the subject.

''Most people think law is being neutral if it doesn't say anything explicit about race,'' she said. ''But it is not usually neutral. It is simply facilitating whatever power relationships were in existence when the law was put in place.''

One important battleground in critical race theory is the criminal justice system: Why, the theorists ask, are a disproportionate number of the men in America's jails black? Many critical race theorists say it is because the system is infected with racism at every level, from prosecutors' offices to judges' chambers.

Some of the nontraditional proposals made by minority law professors startle, and even anger, some of their white colleagues. Prof. Paul Butler of the George Washington University Law School has gone so far as to suggest that blacks, usually a majority on urban juries, should exercise their power to acquit black defendants in nonviolent drug crimes.

Professor Butler, a former Federal prosecutor, has also suggested that black jurors should assess whether black Americans would be helped or harmed by acquitting black defendants accused of stealing the property of whites. He has portrayed his suggestions as a kind of black self-help, a direct way of adjusting the score after decades of racial oppression.

Critics of critical race theory, like Prof. Suzanna Sherry of the University of Minnesota law school, contend that it defies common sense and abandons intellectual principles in an effort to promote the political standing of blacks in society.

Professor Sherry, a co-author of ''Beyond All Reason'' (Oxford University Press), a forthcoming book that challenges critical race theory, suggested in an interview that the movement was the result of increasing frustration among black intellectuals over the failure to eradicate racism.

''The problem with denying any objective reality,'' she said, ''is that there is no way of mediating among the competing perceptions of reality except power. And what they ultimately want is more power for their perceptions.''

Many critical race theorists say an important tool for members of minorities in overcoming their disadvantages is to tell stories, some of them from individual experience and some of them parables. Storytelling, Professor Crenshaw said, aims at ''challenging versions of reality put forward by the dominant white culture.''

Black men, for example, may tell stories about police brutality that are at odds with the official version of how common such behavior is. By putting forward an anecdotal version of reality, Professor Crenshaw said, the men assert the primacy of personal experience -- and no matter what society tells them, they trust their own personal experiences.

Some critical race scholars also construct elaborate fables to illustrate their points. Their books typically eschew evidence to make a point, relying instead on fictionalized tales or dialogue.

But for Professor Sherry, ''storytelling doesn't bear the slightest pressure once you start to examine it.'' Such storytelling, she said, starts with conclusions, ''and when you start with conclusions, it's all too easy to make arguments that won't withstand any scrutiny.''

Her co-author and colleague at the University of Minnesota, Daniel A. Farber, who, like Professor Sherry, is white, said another problem with storytelling, especially personal narratives like the one by Professor Banks, is that when someone challenges a story, ''you're not just criticizing someone's scholarship, but you're attacking their life, something that goes to the heart of their identity.'' Dr. Farber added, ''That can make a dialogue very difficult.''

In defense of storytelling, Prof. Alex M. Johnson Jr. of the University of Virginia has written that minority scholars have a distinct ''voice of color,'' which ''rejects narrow evidentiary concepts of relevance and credibility.''

Some theorists go so far as to say that what really happened in a particular incident may be no more important than what people feel or say happened. For example, some argue that even though Tawana Brawley, then a teen-ager, made up her account that a gang of white men, one with a badge, raped and defiled her in New York in 1987, her story is still valid because it offers truths about the oppression of black women.

In her book ''The Alchemy of Race and Rights'' (Harvard, 1991), Prof. Patricia Williams of the Columbia University Law School appeared to suggest that it made little difference whether Ms. Brawley had made up her account. The teen-ager, Professor Williams wrote, was the victim of an unspeakable crime ''no matter who did it to her -- and even if she did it to herself.''

''Her condition was clearly the expression of some crime against her, some tremendous violence, some great violation that challenges comprehension,'' Professor Williams said. ''Tawana's terrible story has every black woman's worst fears and experiences wrapped into it.''

Critics of Professor Williams's comments, however, note that a New York State grand jury investigated Ms. Brawley's story and concluded that she had made it up. Professor Williams, Professor Sherry wrote, seems ''unable to distinguish between Brawley's fantasized rape and another woman's real one.''

In a recent interview, Professor Williams said she had been misinterpreted. She meant, she said, that the debate about whether Ms. Brawley was telling the truth obscured that she was a troubled minor.

''Her needs were not dealt with, as they should have been with any child,'' Professor Williams said. Further, Ms. Brawley was transformed into a stereotype of ''black women as hard women who can never really suffer any violation,'' she added.

Professor Cook, of Georgetown, the author of a book about race and religion called ''The Least of These'' (Routledge, 1997), put it a different way. Even if Ms. Brawley made up her story, he said, it was meaningful because it accurately represented black women's collective fear of racial and sexual mistreatment, a fear reinforced by centuries of domination and subjugation.

Then what about the stories told by Susan Smith in South Carolina and Charles Stuart in Boston, whites who falsely blamed black men for horrific crimes they had committed themselves? Don't they tell the story, say, of white fear of black crime?

Professor Cook said that the Stuart and Smith events were far less valid than Ms. Brawley's because hers represents a story from an oppressed class.

Prof. Jeffrey A. Rosen of the George Washington University Law School wrote recently in The New Republic, where he is the legal affairs editor, that miscarriages of justice in the O. J. Simpson criminal trial were the ultimate real-world expression of critical race theory.

''Surely the most striking example of the influence of the critical race theorists on the American legal system is the O. J. Simpson case, in which Johnnie L. Cochran dramatically enacted each of the most controversial postulates of the movement before a transfixed and racially divided nation,'' Professor Rosen wrote. ''Indeed, Cochran's strategy in the courtroom might be best described as applied critical race theory.''

He added that Mr. Cochran ''set out, through storytelling and the manipulation of racial iconography, to create a narrative that transformed O. J. from a coddled celebrity into the civil rights martyr of a racist police force.''

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woah

(http://www.autoadmit.com/thread.php?thread_id=4862567&forum_id=2#42668942)

As a result of these disparate admissions standards, many students spend four years in a social environment where race conveys useful information about the academic capacity of their peers. People notice useful social cues, and one of the strongest causes of stereotypes is exposure to real group differences. If a school commits to doubling the number of black students, it will have to reach deeper into its pool of black applicants, admitting those with weaker qualifications, particularly if most other schools are doing the same thing. This is likely to make racial gaps larger, which would strengthen the negative stereotypes that students of color find when they arrive on campus.

The immediate damage to the standards of Yale Law School needs no elaboration. But beyond this, it seems to me the admission policy adopted by the Law School faculty will serve to perpetuate the very ideas and prejudices it is designed to combat. If in a given class the great majority of the black students are at the bottom of the class, this factor is bound to instill, unconsciously at least, some sense of intellectual superiority among the white students and some sense of intellectual inferiority among the black students. Such a pairing in the same school of the brightest white students in the country with black students of mediocre academic qualifications is social experiment with loaded dice and a stacked deck. The faculty can talk around the clock about disadvantaged background, and it can excuse inferior performance because of poverty, environment, inadequate cultural tradition, lack of educational opportunity, etc. The fact remains that black and white students will be exposed to each other under circumstances in which demonstrated intellectual superiority rests with the whites.

No one can be expected to accept an inferior status willingly. The black students, unable to compete on even terms in the study of law, inevitably will seek other means to achieve recognition and self-expression. This is likely to take two forms. First, agitation to change the environment from one in which they are unable to compete to one in which they can. Demands will be made for elimination of competition, reduction in standards of performance, adoption of courses of study which do not require intensive legal analysis, and recognition for academic credit of sociological activities which have only an indirect relationship to legal training. Second, it seems probable that this group will seek personal satisfaction and public recognition by aggressive conduct, which, although ostensibly directed at external injustices and problems, will in fact be primarily motivated by the psychological needs of the members of the group to overcome feelings of inferiority caused by lack of success in their studies. Since the common denominator of the group of students with lower qualifications is one of race this aggressive expression will undoubtedly take the form of racial demands–the employment of faculty on the basis of race, a marking system based on race, the establishment of a black curriculum and a black law journal, an increase in black financial aid, and a rule against expulsion of black students who fail to satisfy minimum academic standards.

The American creed, one that Yale has proudly espoused, holds that an American should be judged as an individual and not as a member of a group. To me it seems axiomatic that a system which ignores this creed and introduces the factor of race in the selection of students for a professional school is inherently malignant, no matter how high-minded the purpose nor how benign the motives of those making the selection….

The present policy of admitting students on two bases and thereafter purporting to judge their performance on one basis is a highly explosive sociological experiment almost certain to achieve undesirable results.

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