Critical Race Theory



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Critical Race Theory


Things to know about the argument: The K goes in the same direction as many of the aff’s that decrease racial profiling in surveillance. You can still make a negative argument if the aff approaches surveillance reduction in a colorblind manner, or makes an argument about upholding the constitution or American Democracy.

The file is also short on generic legal links, but we hope to augment that section in wave 2. The narrative good alternative cards can be re-appropriated for this purpose if you are looking for more in the meantime.

We included a possible 1ac that is a planless, narratives good affirmative. The basis is that racial profiling is based on federal legal whiteness. Inserting narratives of the oppressed into legal discussions blurs objectivity and challenges whiteness.

If you’d like to run a plan, there are various avenues that the courts or congress could address racial profiling in surveillance. Some of that solvency evidence is in the file, but would require some more research. Note that the 1ac doesn’t include an impact beyond racism. If you’d like to add an additional systemic claim to racism, you can pull from the impact portion of the K. Education arguments to answer framework are found in the FW section of the K.



Contributors to thank include: Carla Ho, Cayla Lee, Taya Smith and Michael Cho

***CRT GOOD***



AFF



***1ac ***



We present the following narrative to illustrate the pervasive effect that federal racial profiling law has on legal enforcement


Nelson, 2000 (Jill [Prominent African American Journalist and Novelist], "Police Brutality: An Anthology", 6/28/15, 92-93) // cjh

The gun never moved. When they asked me for my license (they had already discovered John's during the body search), I asked if I could reach down to get it or if they would prefer to get it themselves. I told them I was afraid to reach down. "Why is that, ma'am?" the "officer" responded. The other cop came around and retrieved my purse. He pulled out the wallet. He did not search the bag. The partner returned to the patrol car. The other cop's gun remained ready to fire into John's right temple. And the boy in blue just smiled on. Clearly, we had made his day. About five minutes later, the partner returned. "They do own the car," he mumbled. The gun was placed back in the holster. Then, I received the requisite apology. After all, I was the White woman with the registration and had a medical school ID. The trespass had not been the gun at John's temple, but the ten-minute delay I suffered as a result of "a police computer error" Clearly, John was still a "nigger," but I was apparently no longer a "nigger lovin' slut." The couple did not file a complaint. More fearful than angry, they saw little value in perpetuating a painful experience. Countless other victims of police abuse must reach a similar conclusion. Under those conditions, pragmatism prevails over courage. Principle is sacrificed to survival. This is America. There is a long history of de facto autho-rization for police to keep Blacks generally and Black men most specifically in the subordinate place that society approves and the law condones. Racial rhetoric? Hardly. From the earliest period in our history, a primary role of law enforcement was to keep Blacks under control, quite literally during the slavery era. To curb runaways and prevent the formation of insurrectionary plots, slaveholders developed elabo-rate systems of patrols made up of conscripted local Whites who traveled the roads and checked plantation quarters. Slaves caught without passes were summarily punished with twenty lashes, but the brutality of the patrols resulted in complaints from slaves and mas-ters alike.' The end of slavery in 1863 increased the danger of the now free Blacks, who posed a greater threat to Whites determined to keep the former chattels in their subordinate place. As a child in Durham, North Carolina, during the second decade of the twentieth century, Pauli Murray viewed the local police "as heavily armed, invariably mountainous red-faced [men] who to me seemed more a signal of calamity than of protection."' Albon Holsey, growing up in Georgia at the turn of the century, recalled having lived in "mortal fear" of the police, "for they were arch-tormenters and persecutors of Negroes."' The North was no better. Richard R. Wright Jr. remembered, "I was convinced early that policemen were my enemies. I never approached a policeman with a question until I had been in Chicago for nearly a year."' Leon Litwack has written that during the Jim Crow era, the subject of the police often dominated conversations among young Blacks. The stories revolved around chases, harassment, clubbings, illegal arrests, and coerced confessions.' Far worse than what the police did to Blacks is what they failed to do. From 1859 through the early 1960s, at least five thousand Blacks lost their lives by lynching.' There are few reports that police or other law enforcement officials posed a serious barrier to lynch mobs. And, of course, few, if any, of the perpetrators were ever brought to justice. According to a scholar of the period, lynchers had "little to fear from those who administered the southern legal sys-tem," and prosecutors often dismissed lynchings as "an expression of the will of the people."' In 1900, for example, there were at least 105 reported lynchings. In New Orleans during that year, -White mobs assaulted Blacks for three days, burning and robbing their homes and stores. Mass murder was not sufficient to save the first of several antilynching measures, this one introduced by G. H. White, a Black congressman from North Carolina, from dying in committee." Despite earnest campaigns by the NAACP, which was founded a decade later, and other groups, the Congress never passed any of the antilynching bills placed before it. Beyond documented lynchings by vigilante mobs, it is simply impossible to estimate the number of Blacks murdered by individual Whites in cases where the motive was racial antagonism. Only a small number of those who committed these crimes were tried for them.

The FBI surveillance has historically targeted people of color without ‘cause’


Cyril, 15 (Malkia [Activist and Writer], April issue of The Progressive, "Black America's State of Surveillance", 6/27/15, www.progressive.org/news/2015/03/188074/black-americas-state-surveillance) // cjh

Ten years ago, on Martin Luther King Jr.’s birthday, my mother, a former Black Panther, died from complications of sickle cell anemia. Weeks before she died, the FBI came knocking at our door, demanding that my mother testify in a secret trial proceeding against other former Panthers or face arrest. My mother, unable to walk, refused. The detectives told my mother as they left that they would be watching her. They didn’t get to do that. My mother died just two weeks later. ¶ My mother was not the only black person to come under the watchful eye of American law enforcement for perceived and actual dissidence. Nor is dissidence always a requirement for being subject to spying. Files obtained during a break-in at an FBI office in 1971 revealed that African Americans, J. Edger Hoover’s largest target group, didn’t have to be perceived as dissident to warrant surveillance. They just had to be black. As I write this, the same philosophy is driving the increasing adoption and use of surveillance technologies by local law enforcement agencies across the United States. ¶ Today, media reporting on government surveillance is laser-focused on the revelations by Edward Snowden that millions of Americans were being spied on by the NSA. Yet my mother’s visit from the FBI reminds me that, from the slave pass system to laws that deputized white civilians as enforcers of Jim Crow, black people and other people of color have lived for centuries with surveillance practices aimed at maintaining a racial hierarchy. ¶ It’s time for journalists to tell a new story that does not start the clock when privileged classes learn they are targets of surveillance. We need to understand that data has historically been overused to repress dissidence, monitor perceived criminality, and perpetually maintain an impoverished underclass.In an era of big data, the Internet has increased the speed and secrecy of data collection. Thanks to new surveillance technologies, law enforcement agencies are now able to collect massive amounts of indiscriminate data. Yet legal protections and policies have not caught up to this technological advance. ¶ Concerned advocates see mass surveillance as the problem and protecting privacy as the goal. Targeted surveillance is an obvious answer—it may be discriminatory, but it helps protect the privacy perceived as an earned privilege of the inherently innocent. The trouble is, targeted surveillance frequently includes the indiscriminate collection of the private data of people targeted by race but not involved in any crime. ¶ For targeted communities, there is little to no expectation of privacy from government or corporate surveillance. ¶ Instead, we are watched, either as criminals or as consumers. We do not expect policies to protect us. Instead, we’ve birthed a complex and coded culture—from jazz to spoken dialects—in order to navigate a world in which spying, from AT&T and Walmart to public benefits programs and beat cops on the block, is as much a part of our built environment as the streets covered in our blood.

This continues today through federal surveillance, grounded in constitutionalism, and used to propagate the myth of ‘black criminality’

Marshall 12 - Assistant Professor — Ph.D., 2002, Government, Harvard University (Stephen, "The Political Life of Fungibility" http://muse.jhu.edu/journals/theory_and_event/v015/15.3.marshall.html)

Presumed guilt constituted Martin’s peculiar vulnerability and this presumption has a political constitution. When Zimmerman saw Martin he saw criminality, understood as the commission of crime, an intension to commit crime, an escape from prior crime, or some combination of the three. Tempting as it may be to look to the War on Drugs during the Reagan era as the seedbed for state practices of racialized surveillance, interdiction, and incarceration, both the Reagan era’s escalation of these practices and the presumption of Martin’s guilt are bound up with the criminalization of blackness that emerges in the context of US slavery. This is a history of racialization in which black agency is figured as criminality. Although the US Constitution artfully evades the word slavery and refuses express enumeration of the racial attributes of citizenship, it articulates the figure of black criminality as fundamental law and affirms practices of racialized surveillance and interdiction as civic virtue. Answering to lingering Jeffersonian questions about black humanity engendered by the 3/5 clause of Article I, Section II, Article IV defines national citizenship by setting it in an antagonistic relation to the crime of black fugitivity. Opposing the “immunities and privileges” of citizenship to the culpable derelictions of treason, felony, and escape from slavery, the framers yoke blackness to crime, legislate the intelligibility of black agency in the figure of the fugitive slave, and inscribe the “immunities and privileges” of citizenship as both a freedom from the presumption of criminal alterity and a duty to interdict the fugitive. Noting the fragility of constitutions and the indispensable constitutional scaffolding provided by criminal alterity and norms of interdiction, Alexis de Tocqueville writes, “the genuine sanction of political laws is to be found in the penal laws, and if the sanction is lacking, the law sooner or later loses its force. Therefore, the man who judges the criminal is really the master of society.”6 By expressly granting blacks entitlement to “immunities and privileges” of citizenship, the 14th Amendment (1868) sought to abolish black fugitivity and dissipate the antagonism between it and US citizenship. Grand as was the effort, such a revolution proved impossible. With commercial exchange of black bodies prohibited except as punishment for crime, Historian Kali Gross notes how Northern white newspapers invent the figure of the “Colored Amazon” to allege the growing menace of black women’s criminality and “supply a new and growing commercial trade in blackness.”7 Concurrently, white southerners rehabilitate black fugitivity in the more menacing figure of the black rapist and re-found the old antagonism upon the violent hatred patriarchal societies cultivate against sexual predators who assail the women it values. At the turn of the century, southern intellectual’s leading role in propagating selective census data which reflected repressive criminalization of southern black life helped to give birth to modern crime statistics as well as make the case that northern blacks were also unfit for citizenship. As Kalil Muhammad notes, one of the crucial legacies of “race conscious laws, discriminatory punishments, and new forms of everyday surveillance” is its contribution to a “statistical rhetoric of black criminality” that operates as “a proxy for a national discourse on black inferiority.”8 When the figures of the welfare queen and drug warlord were vibrantly recirculated in the 1980s in connection with the southern strategy of the Republican Party, they neither inaugurated the criminalization of blackness nor simply revived a disreputable national tradition of racial animus. Recovering constitutional principle that posits an antagonism between the citizen and the fugitive slave, the party refashioned black fugitivity in order to restore American citizenship in the post-civil rights Era.

Snowden revealed nothing for people of color – The targeted surveillance of black populations has been consistant and justified by federal law


Cyril 2015 (Malkia Amala [under and executive director of the Center for Media Justice (CMJ) and co-founder of the Media Action Grassroots Network]; Black America's State of Surveillance; Mar 30; www.progressive.org/news/2015/03/188074/black-americas-state-surveillance; kdf)

Today, media reporting on government surveillance is laser-focused on the revelations by Edward Snowden that millions of Americans were being spied on by the NSA. Yet my mother’s visit from the FBI reminds me that, from the slave pass system to laws that deputized white civilians as enforcers of Jim Crow, black people and other people of color have lived for centuries with surveillance practices aimed at maintaining a racial hierarchy. It’s time for journalists to tell a new story that does not start the clock when privileged classes learn they are targets of surveillance. We need to understand that data has historically been overused to repress dissidence, monitor perceived criminality, and perpetually maintain an impoverished underclass. In an era of big data, the Internet has increased the speed and secrecy of data collection. Thanks to new surveillance technologies, law enforcement agencies are now able to collect massive amounts of indiscriminate data. Yet legal protections and policies have not caught up to this technological advance. Concerned advocates see mass surveillance as the problem and protecting privacy as the goal. Targeted surveillance is an obvious answer—it may be discriminatory, but it helps protect the privacy perceived as an earned privilege of the inherently innocent. The trouble is, targeted surveillance frequently includes the indiscriminate collection of the private data of people targeted by race but not involved in any crime. For targeted communities, there is little to no expectation of privacy from government or corporate surveillance. Instead, we are watched, either as criminals or as consumers. We do not expect policies to protect us. Instead, we’ve birthed a complex and coded culture—from jazz to spoken dialects—in order to navigate a world in which spying, from AT&T and Walmart to public benefits programs and beat cops on the block, is as much a part of our built environment as the streets covered in our blood. In a recent address, New York City Police Commissioner Bill Bratton made it clear: “2015 will be one of the most significant years in the history of this organization. It will be the year of technology, in which we literally will give to every member of this department technology that would’ve been unheard of even a few years ago.” Predictive policing, also known as “Total Information Awareness,” is described as using advanced technological tools and data analysis to “preempt” crime. It utilizes trends, patterns, sequences, and affinities found in data to make determinations about when and where crimes will occur. This model is deceptive, however, because it presumes data inputs to be neutral. They aren’t. In a racially discriminatory criminal justice system, surveillance technologies reproduce injustice. Instead of reducing discrimination, predictive policing is a face of what author Michelle Alexander calls the “New Jim Crow”—a de facto system of separate and unequal application of laws, police practices, conviction rates, sentencing terms, and conditions of confinement that operate more as a system of social control by racial hierarchy than as crime prevention or punishment. In New York City, the predictive policing approach in use is “Broken Windows.” This approach to policing places an undue focus on quality of life crimes—like selling loose cigarettes, the kind of offense for which Eric Garner was choked to death. Without oversight, accountability, transparency, or rights, predictive policing is just high-tech racial profiling—indiscriminate data collection that drives discriminatory policing practices. As local law enforcement agencies increasingly adopt surveillance technologies, they use them in three primary ways: to listen in on specific conversations on and offline; to observe daily movements of individuals and groups; and to observe data trends. Police departments like Bratton’s aim to use sophisticated technologies to do all three. They will use technologies like license plate readers, which the Electronic Frontier Foundation found to be disproportionately used in communities of color and communities in the process of being gentrified. They will use facial recognition, biometric scanning software, which the FBI has now rolled out as a national system, to be adopted by local police departments for any criminal justice purpose. They intend to use body and dashboard cameras, which have been touted as an effective step toward accountability based on the results of one study, yet storage and archiving procedures, among many other issues, remain unclear. They will use Stingray cellphone interceptors. According to the ACLU, Stingray technology is an invasive cellphone surveillance device that mimics cellphone towers and sends out signals to trick cellphones in the area into transmitting their locations and identifying information. When used to track a suspect’s cellphone, they also gather information about the phones of countless bystanders who happen to be nearby. The same is true of domestic drones, which are in increasing use by U.S. law enforcement to conduct routine aerial surveillance. While drones are currently unarmed, drone manufacturers are considering arming these remote-controlled aircraft with weapons like rubber bullets, tasers, and tear gas. They will use fusion centers. Originally designed to increase interagency collaboration for the purposes of counterterrorism, these have instead become the local arm of the intelligence community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the clearinghouse for increasingly used “suspicious activity reports”—described as “official documentation of observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.” These reports and other collected data are often stored in massive databases like e-Verify and Prism. As anybody who’s ever dealt with gang databases knows, it’s almost impossible to get off a federal or state database, even when the data collected is incorrect or no longer true. Predictive policing doesn’t just lead to racial and religious profiling—it relies on it. Just as stop and frisk legitimized an initial, unwarranted contact between police and people of color, almost 90 percent of whom turn out to be innocent of any crime, suspicious activities reporting and the dragnet approach of fusion centers target communities of color. One review of such reports collected in Los Angeles shows approximately 75 percent were of people of color. This is the future of policing in America, and it should terrify you as much as it terrifies me. Unfortunately, it probably doesn’t, because my life is at far greater risk than the lives of white Americans, especially those reporting on the issue in the media or advocating in the halls of power. One of the most terrifying aspects of high-tech surveillance is the invisibility of those it disproportionately impacts. The NSA and FBI have engaged local law enforcement agencies and electronic surveillance technologies to spy on Muslims living in the United States. According to FBI training materials uncovered by Wired in 2011, the bureau taught agents to treat “mainstream” Muslims as supporters of terrorism, to view charitable donations by Muslims as “a funding mechanism for combat,” and to view Islam itself as a “Death Star” that must be destroyed if terrorism is to be contained. From New York City to Chicago and beyond, local law enforcement agencies have expanded unlawful and covert racial and religious profiling against Muslims not suspected of any crime. There is no national security reason to profile all Muslims. At the same time, almost 450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum seekers, families with small children, and the elderly. Undocumented migrant communities enjoy few legal protections, and are therefore subject to brutal policing practices, including illegal surveillance practices. According to the Sentencing Project, of the more than 2 million people incarcerated in the United States, more than 60 percent are racial and ethnic minorities. But by far, the widest net is cast over black communities. Black people alone represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on the eve of the Civil War. Lest some misinterpret that statistic as evidence of greater criminality, a 2012 study confirms that black defendants are at least 30 percent more likely to be imprisoned than whites for the same crime. This is not a broken system, it is a system working perfectly as intended, to the detriment of all. The NSA could not have spied on millions of cellphones if it were not already spying on black people, Muslims, and migrants. As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial disparities are being made invisible by a media environment that has failed to tell the story of surveillance in the context of structural racism.

This discriminatory law represents the white-dominant narrative that determines objectivity


Carbado 3--(Devon W., Professor of Law at the UCLA School of Law, Constitutional Criminal Procedure, Constitutional Law, Critical Race Theory, and Criminal Adjudication. The Yale Law Journal, Vol. 112, No. 7 (May, 2003), pp. 1757-1828 http://www.jstor.org/stable/3657500 , cayla_)

A fourth payoff from using narrative is that it can function as a rhetorical strategy to rearticulate the ideological content of various legal regimes to demonstrate that, as Enrique Carrasco puts it, "law is essentially a story that reflects and legitimates the (racial) viewpoints and interests of those in power."'38 Consider Sherene Razack's contribution to A New Critical Race Theory. She employs narrative to uncover the national story behind Canadian immigration law: "Canada is besieged. Every Tom, Dick, and Harry wants to get in. They will stop at nothing. They do not respect us. They will return our generosity with betrayal. We have no choice but to become strict and to monitor more closely who is coming in."'39 Razack demonstrates how this story is employed to give political and legal traction to a variety of mechanisms (for example, the requirement that border crossers carry certain identity documents) to police the Canadian border and its national identity. At bottom, narrative is a methodology. It can be done well or poorly, and it is valuable and worth using where it either provides better or previously discounted evidence or more effectively persuades than other methodologies.


Inserting the narrative of the oppressed into legal discourse challenges the objectivity that white privilege claims over the law


Chang 93 – (Robert S. Seattle University Professor of Law and Executive Director of the Fred T. Korematsu Center for Law and Equality “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space” California Law Review, Vol. 81, No. 5 (Oct., 1993), pp. 1241+1243-1323 http://www.jstor.org/stable/3480919 , cayla_)

Mainstream academic legal discourse begins from the premise that objective knowledge exists and is accessible. I call this the rational/ empirical position. My own theoretical bias tells me that this is a false premise, but I start here to show how the case for personal narrative would appear within the context of mainstream academic discourse.180 Different disempowered groups have developed a similar methodology that tries to reveal bias in supposedly neutral standards. Feminist legal scholars ask "[t]he woman question." They ask "about the gender implications of a social practice or rule: have women been left out of consideration? If so, in what way; how might that omission be corrected? What difference would it make to do so?"181 Race scholars ask the race question, and so on. The use of the objective voice is one of the social practices that has come under the scrutiny of those asking this type of question. The objective voice is obtained by abstracting from the individual in order to universalize the perspective of the author so that not only does the author, as an abstracted entity, speak as Everyman, the author also presumes to speak for everyone. A favorite device is the use of what one commentator calls the "constitutive we."'s2 This "constitutive we" appears in the work of many philosophical and legal theorists. For example, John Rawls uses "we" in a subtle way that includes "us" as fellow inquirers into the questions he poses."83 But who does he think "we" is?184 Too often, the individual used as the model for the universal is a man, and more specifically, a white man. Thus, one goal of personal narrative is to discredit this "we." For example, I might use personal narrative to show that the "we" is a lie because it does not include "me." The stories of outsiders become important because they tell the story from different perspectives, perspectives that may have been excluded when formulating the objective, universal "we." It is important to remember that at this stage, personal narrative is not being offered to replace what had previously been thought of as objective: to impose my subjectivity upon everyone else only repeats the sin.'85 Rather, personal narrative is being offered to show that objectivity may actually be a disguise for white male subjectivity, which takes away the subjectivity of the disempowered. 86 One attempt to restore these lost subjectivities relies on a version of standpoint epistemology. An objectivist or liberal epistemology takes as the proper standpoint that of the "neutral, disinterested observer, a so-called Archimedean standpoint somewhere outside the reality that is being observed."'87 In contrast, standpoint epistemologies identify a certain group as victim and then "privileges that status by claiming that it gives access to understanding about oppression that others cannot have."'88 In the context of feminism, "[t]he feminist standpoint epistemologies argue that because men are in the master's position vis-i-vis women, women's social experience-conceptualized through the lenses of feminist theory--can provide the grounds for a less distorted understanding of the world around us."'189 This same point can and has been made about other oppressed groups.'90 One question that arises is why the viewpoint of the oppressed should be privileged. One theorist argues that the standpoint of the oppressed is epistemologically advantageous for the following reasons: It provides the basis for a view of reality that is more impartial than that of the ruling class and also more comprehensive. It is more impartial because it comes closer to representing the interests of society as a whole; whereas the standpoint of the ruling class reflects the interests only of one section of the population, the standpoint of the oppressed represents the interests of the totality in that historical period. Moreover, whereas the condition of the oppressed groups is visible only dimly to the ruling class, the oppressed are able to see more clearly the ruled as well as the rulers and the relation between them. Thus, the standpoint of the oppressed includes and is able to explain the standpoint of the ruling class.191 But the claim that the standpoint of the oppressed is more impartial is unconvincing. It seems that the standpoint of the oppressed would be partial; it would not necessarily provide less distorted views but differently distorted views. The claim of representing society as a whole also seems problematic because the viewpoints of the oppressed and oppressors are quite distinct and complex.192 It still might make sense to include the standpoint of the oppressed, however, not because it has any special access to the truth, but because what is taken as truth is incomplete or distorted without the views of the oppressed.'93 There is the further problem of identifying the standpoint of the oppressed. If oppression or subjugation provides the grounding for having a less distorted view, then it would seem that the prime candidate would be the standpoint of lesbians of color.194 Even if, for the sake of simplicity, we decide that the relevant category is that of women, we are still left with the problem of identifying this standpoint. One commentator warns that we cannot discover this standpoint "directly in women's naive and unreflective world view,""' because this world view, usually labelled as false consciousness, has been shaped by the dominant male perspective so that it cannot be trusted. Even with standpoint epistemology, then, not all stories of oppression are created equal. This is problematic "because of the unwillingness, central to feminism, to dismiss some women as simply deluded while granting other women the ability to see the truth."196

They are the counter-hegemonic device that disrupts racial objectivity


Carbado 3--(Devon W., Professor of Law at the UCLA School of Law, Constitutional Criminal Procedure, Constitutional Law, Critical Race Theory, and Criminal Adjudication. The Yale Law Journal, Vol. 112, No. 7 (May, 2003), pp. 1757-1828 http://www.jstor.org/stable/3657500 , cayla_)

First, narrative performs an epistemological function. It provides knowledge about the nature of discrimination from the perspective of those who experience it. But why narrative and why not statistical analysis? After all, statistical analysis (assuming a large enough data set) has the benefits of identifying a general phenomenon that is verifiable by third parties.126 And certainly there is nothing about the use of narrative in CRT that precludes critical race theorists from also using statistics. So why not the epistemology of statistics rather than (or in addition to) the epistemology of narrative? The answer may be that narrative does something that statistical analysis does not: It focuses on the specific and provides detail. Statistical analyses do the reverse. When an outsider is trying to describe an experience to someone who cannot readily relate to it, an insider, narrative provides the detail that can help the insider empathize and relate to the experience. To employ the language of Clifford Geertz, "We see the lives of others through lenses of our own grinding."'27 Narrative helps to situate whites in the "grinding" of racial subordination. A second payoff from using narrative relates to the idea of truth. Narrative is a means by which one can challenge "the perfectibility, externality, or objectivity of truth."'3' Through narrative, critical race theorists can demonstrate the contingency and situatedness of truth. For example, the first two essays in A New Critical Race Theory-Kimberl6 Crenshaw's contributionl32 and the contribution of Sumi Cho and Robert Westley'33-are in dialogue about the "true" genesis of CRT. Of course, Cho and Westley would not say that the history they excavate-which focuses on student activism as a form of social movement that helped to form the "theory"-is true and that the account provided by, among others, Crenshaw (which they argue focuses on the "writings that 'formed the movement""134) is false. Nor are Cho and Westley invested in "proliferate[ing] competing genesis stories."'35 But they do mean to suggest that the truth about the genesis of CRT is bigger than Crenshaw's "superagency" approach, an approach that they say "emphasize[s] the agency of individual scholars.""36 The juxtaposition of Crenshaw's essay against Cho and Westley's reminds us that while most of the controversy about "truth" and CRT arises in the context of contestations between critical race theorists and their detractors, the question of what is true-as well as the question of how truth should be theorized-is contested (sometimes only implicitly) within CRT as well. A third benefit of narrative is that it can serve as a counterhegemonic device. Through narrative, people of color can counter the dominant representations of their identities and their experiences; they can engage in what Margaret Montoya refers to as "discursive subversions."' 37 This is the project in which Henry Richardson engages. He constructs a conversation between an African president and an African American law professor. The exchange constitutes a form of discursive subversion in that whiteness occupies a background and marginal space in the discussion. Put differently, the conversation is not mediated by concerns about whiteness or black respectability. The professor and the African president speak about international politics, domestic sovereignty, and tribal conflicts. The conversation is unconstrained by racial surveillance. They appear to be speaking not as subalterns, but as fully formed (or, at least, not overly determined) subjects. Presumably, one of the reasons Richardson confers this sense of freedom on the professor and the president is to raise a question about power: What happens when black people have it? His answer seems to be that problems of division and social conflict do not necessarily disappear. Michel Foucault's descriptive claim-that we have an ambivalent relationship to power-becomes, in Richardson's essay, a normative one.

A race-conscious approach to law and jurisprudence transforms law


Hutchinson 2 – (Darren L. Professor of Constitutional Law, Remedies, Race and the Law, and Civil Rights Seminar at the University of Florida Levin College of Law “Progressive Race Blindness?: Individual Identity, Group Politics, and Reform” 6-2002 scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1399&context=facultypub , cayla_)

Political resistance is perhaps the most positive usage of race by persons of color. Persons of color utilize racial identity to respond to racial subjugation. Race serves as an organizational instrument for challenging racial oppression.52 Furthermore, in the context of law and policy, persons of color and progressive scholars have advocated the implementation of race-conscious policies that seek to remedy social inequality1 3 Supreme Court opposition to remedial race consciousness has sparked a generous amount of criticism from progressive scholars.54 The arguments of proponents of progressive race blindness threaten to legitimize this conservative jurisprudence that neutralizes governmental efforts to combat racial injustice.55 The abolition of race-a position advanced in varying degrees in progressive race blindness scholarship-would make it difficult for persons of color to resist oppression and to demand race-conscious remedies for racial oppression.56 In an apparent effort to avoid complicating racial justice efforts, some proponents of progressive race blindness have qualified their claims: They have crafted their arguments to accommodate the usage of race as an antisubordination tool. Cunningham, for example, wants to maintain "race as a cause of action" for racial injustice, while extricating it from notions of individual identity. 7 Even Appiah, who has been quite vigilant in his deconstruction of and opposition to racial categorization, now recognizes (at least in passing) the political significance of race to persons of color.58 Appiah, nevertheless, qualifies his observation that race can serve as a site of resistance by cautioning advocates of race consciousness against "let[ting] our racial identities subject us to new tyrannies."5 9 This analytical compromise, which would keep race as a source of political resistance while abandoning or tentatively embracing it as an aspect of identity, obscures the connections between racial identity and resistance. This blurring of identity and politics occurs because progressive race blindness theorists overlook two important factors related to identity and resistance. First, progressive race blindness theorists disregard the fact that racial resistance strengthens an individual's racial identity or race consciousness. Furthermore, these theorists do not recognize that some level of race consciousness, or racial identity, serves as a prerequisite or catalyst for racial resistance. In sum, the proponents of progressive race blindness do not acknowledge that there is a symbiotic relationship between racial resistance and identity formation; the two processes are mutually reinforcing. [. . .] The progressive race blindness scholarship also blurs the reality that racial consciousness or identity serves as a prerequisite or catalyst for racial resistance. Persons of color have written extensively on how their racial identity-shaped by experiences with subordination-gives them valuable "experiential knowledge" for challenging racial injustice. 6 Similarly, progressive whites have persuasively argued that white obliviousness to race and racial identity impedes whites' understanding and appreciation of racial oppression. 63 For whites or persons of color, race consciousness and identity help create the circumstances for meaningful racial resistance. Accordingly, the progressive race blindness compromise, which seeks to maintain political race but to extricate race from identity and culture, presents an unworkable position. Political resistance to racial subordination constructs and reinforces racial identity and consciousness; racial identity and consciousness are prerequisites for racial resistance. By opposing or questioning racial identity, proponents of progressive race blindness offer a theory that renders racial resistance an extraordinarily difficult or even impossible proposition.
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