Critical Race Theory



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AT: Blending Race and Culture Bad



The Courts must see race-as-culture to prevent whiteness forcing assimilation


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_)

A final problem with progressive race blindness theory is that some of the authors fail to appreciate the magnitude and complexity of racial hierarchy. The work of Ford and Robinson illustrate this point. Ford argues that racial justice claims should be divorced from claims of cultural oppression.7' Ford's primary ground for skepticism is his belief that the blending of race and culture will harm persons of color by essentializing cultural identity and group membership and that the litigation of "race-as-culture" discrimination claims will empower courts to define "authentic" and "inauthentic" cultural participation. 7 Ford's analysis fails to comprehend the variety of forms in which racism exists. In particular, Ford does not appreciate the cultural forms of racism and their detrimental effects upon persons of color. In the context of employment discrimination, for example, employers have discriminated on the basis of a battery of workplace rules, such as language ("English-only"), dress, and grooming codes, that operate negatively upon persons of color; these regulations penalize employees for wearing clothing, speaking languages, or wearing hairstyles that are racially identifiable. 73 As several scholars have recognized, the failure of courts to protect race-as-culture results from a narrow view that race has a fixed, static, and even biological quality; race, however, is active, practiced, and expressive.74 The courts' separation of race and culture allows employers and other discriminators to force "Others" to assimilate white, heterosexual, and male norms, while purporting to regulate "neutral" behaviors such as dress, language, and hairstyle. 75


CRT no self-identification



CRT disregards choice in interpersonal identifications of race


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 second deficiency is that CRT articulates its conception of race as a social construction at the macro level, focusing primarily on legal and sociopolitical processes.' It has not paid attention to the interpersonal ways in which race is produced." That is, CRT often ignores the racial productivity of the "choices" people of color make about how to present theinseles as racialized persons.7 As a general matter, CRT's race-as-asocial-construction thesis does not include an analysis of the race-producing practices reflected in the daily negotiations people of color perform in an attempt to shape how (especially white) people interpret their nonwhite identities." For example, a Latina may decide not to speak Spanish at work, she may decide to "hold her tongue," or she may refrain from socializing with other Latina workers." These are all race-constructing choices: How a Latina exercises them will inform how her employer and fellow employees experience her as a Latina. A CRT/L&E engagement helps to cure some of the deficiencies in both fields. For example, CRT's notion of race as a social construction can help L&E scholars move to a dynamic conception of race, and L&E's focus on the incentive effects of legal and institutional (norm-based) constraints can help CRT scholars analyze the ways in which the pressures and constraints of the workplace shape both employer and employee behavior. In short, a CRT/L&E joint venture could advance our thinking about how, in the shadow of law, workplace structures and norms affect racial identity-and vice versa. The argument for a collaboration between economics and CRT (and feminist theory and gay and lesbian legal studies) was made with force in a 1996 essay by Ed Rubin.lo Rubin argued that the common critical approach to institutional analysis shared by L&E and CRT-both fields reject claims about the neutrality and objectivity of legal rules, albeit for different reasons-would, if combined, produce not only an exciting new methodology for legal inquiry, but one with potential to succeed the Legal Process school as a unifying discourse in legal academia. In the six years since the piece was published, however, there has been little collaborative work between CRT and L&E." If anything, there has been increased antagonism.'2


Narratives Bad

Narratives are problematic


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_)

This concern about the anecdotal nature of personal narrative manifests itself in resistance and doubt from audiences when they hear stories from critical race scholars. For example, when Professor Patricia Williams tells her now infamous Benetton story,151 the audience forces her to answer such questions as the following: Am I not privileging a racial perspective, by considering only the black point of view? Don't I have an obligation to include the "salesman'side" of the story? How can I be sure I'm right? What makes my experience the real black one anyway? Isn't it possible that another black person would disagree with my experience? If so, doesn't that render my story too unempirical and subjective to pay any attention to?052 These questions are similar to the questions I face when I tell my stories. I usually keep these stories to myself because when I tell them to people, I often hear doubt in their voices and their questions. How do you know it was racism? How do you know that the same thing would not have happened to anyone else? They question the details. Did you really see the border guard smirk? How do you know that the service station was not out of gas? But I am ready for their questions. I have prepared answers. The car before me at the service station got gas, and the white man in the car in front of me at the border crossing did not have a problem with his driver's license. Yes, I could see that far away; I have good vision. As the questions keep coming, I realize that people do not want to believe me. They do not want to see racism because it is ugly. They have learned or convinced themselves that such ugliness does not exist, at least not in such blatant forms, and not to Asian Americans.153 From their perspective, since Asian Americans do not suffer from discrimination, I must be mistaken, deluded,154 or lying. And even if they believe my stories, they discount them as isolated incidents.155 Although these questions that Patricia Williams and I face represent common concerns when we use stories in a discourse on law, there are important differences. While people usually concede that African Americans suffer from discrimination, they often question the extent or pervasiveness of it.'56 For Asian Americans, however, people do not even reach the question of extent because the majority of Americans do not believe that Asian Americans suffer from discrimination. 57 Nor is this false belief in the Asian American model minority myth confined to the general public-it has infected government officials and members of the judiciary."58 This creates different problems for legal storytellers when they speak about Asian American problems. [. . .] When the real question about objectivity is asked, further questions are revealed. What counts as knowledge? What counts as evidence? One use of outsider stories is to demonstrate the inequities of the present situation. The disempowered find ourselves in a peculiar position in that the evidence we would use to prove our oppression consists of the very stories that are now disbelieved or excluded because they are only stories. In this way, rules of evidence silence us. In order to get our stories into evidence, we need to broaden or change the very meaning of evidence.'73 In order to make the case for narrative, I turn now to epistemology because our theory of knowledge largely determines what counts as knowledge and what counts as evidence.

Critical Race Theory denies the oppression of Asian Americans


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_)

This story illustrates the danger of the model minority myth: it renders the oppression of Asian Americans invisible. This invisibility has harmful consequences, especially when those in positions of power cannot see: To be out of sight is also to be without social services. Thinking Asian Americans have succeeded, government officials have sometimes denied funding for social service programs designed to help Asian Americans learn English and find employment. Failing to realize that there are poor Asian families, college administrators have sometimes excluded Asian-American students from Educational Opportunity Programs (EOP), which are intended for all students from low-income families.81 In this way, the model minority myth diverts much-needed attention from the problems of many segments of the Asian American community, particularly the Laotians, Hmong, Cambodians, and Vietnamese who have poverty rates of 67.2%, 65.5%, 46.9%, and 33.5%, respectively. These poverty rates compare with a national poverty rate of 9.6%.83 In addition to government officials, this distorted view of the current status of Asian Americans has infected at least one very influential member of the judiciary and legal academy. At a recent conference of the Association of American Law Schools, Judge Posner asked two rhetorical questions: "Are Asians an oppressed group in the United States today? Are they worse off for lacking sizable representation on the faculties of American law schools?"84 His questions are rhetorical because he already has answers, with figures to back them up: "In 1980, JapaneseAmericans had incomes more than 32% above the national average income, and Chinese-Americans had incomes more than 12% above the national average; Anglo-Saxons and Irish exceeded the average by 5% and 2%, respectively."85 He also points out that "in 1980, 17.8% of the white population aged 25 and over had completed four or more years of college, compared to 32.9% of the Asian-American population." [. . .] This blame and its consequences create resentment against Asian Americans among African Americans, Latinos, and poor whites.'03 This resentment, fueled by poor economic conditions, can flare into anger and violence. Asian Americans, the "model minority," serve as convenient scapegoats, as Korean Americans in Los Angeles discovered during the 1992 riots." Many Korean Americans "now view themselves as 'human shields' in a complicated racial hierarchy," caught between "the racism of the white majority and the anger of the black minority."'05 The model minority myth plays a key role in establishing a racial hierarchy which denies the oppression of Asian Americans while simultaneously legitimizing the oppression of other racial minorities and poor whites.


The performative understanding of race is key to understanding critical race theory


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_)

The essay in A New Critical Race Theory that tackles racial presentation and performance is Anthony Farley's discussion of the objectification of the black body by white society.71 Although Farley only once employs the language of performance, his argument is about the choices people make about how to be raced. His thesis is this: "Race is a form of pleasure. For whites, it is a sadistic pleasure in decorating black bodies with disdain. For blacks-in today's non-revolutionary situation-it has become a masochistic pleasure in being so decorated."72 Fundamental to Farley's claim, then, is that while whites and blacks are not similarly situated with respect to the color line,73 both groups derive pleasure from the sociopolitical processes that constitute it. Farley spends considerable time explaining why whites would be invested in employing the black body as a "fetish object," but little explaining why blacks would make themselves available for, and derive pleasure from, racial objectification. One might posit that the answer is constraint-black agency is so constrained as to make participation inexorable. Farley's answer seems to be seduction-the seduction of a colorblind future or of a depoliticized understanding of Martin Luther King's dream.74 Farley is critical of this seduction and conceptualizes it as a performance that acquiesces in, reproduces, and legitimizes racial hierarchy. He writes: The black body is a vast writing project. It is a twice-haunted, twice-scripted body. The good Negro and the bad Negro are animating spirits that emerge, like the Madonna and the Whore, depending on the performance desired. White pre-Civil Rights Movement desire for abject black bodies required, at times, the good Negro of minstrelsy and, at other times, the bad Negro of lynchings. Pity and contempt were the twin emotions that accompanied the race pleasure rituals ....75 Farley's suggestion seems to be that the racial quality of black identity performances (the good negro versus the bad negro) makes the color line more or less a pleasurable thing for whites-and for blacks. The concept of race as performative provides a vehicle for thinking about how race figures in employment decisions that are not driven by explicit racial animus.



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