Critical Race Theory Syllabus Fall 2013, Mondays, 1pm – 3: 40 pm Room 501 Professor Epperson

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Critical Race Theory

Fall 2013, Mondays, 1pm – 3:40 pm

Room 501

Professor Epperson

Office 387 / 202-274-4431

Assistant Ashley Allen, Room 384 / 202-274-4369 /

Office Hours: Wednesdays 3:45-5:00 pm and by appointment

(E-mails also welcome)

More than two decades ago, a new scholarly movement developed in the legal academy. This movement, Critical Race Theory, challenged the style and substance of conventional legal scholarship. Critical Race Theory is a diverse interdisciplinary field, which critiques the “objectivist” approach to the law and legal systems. Some of the better known early advocates of this movement include Derrick Bell, Mari Matsuda, Charles Lawrence, Richard Delgado, Kimberlé Crenshaw, and Patricia Williams. Critical race scholars have rejected traditional legal methods of addressing systemic racial inequities such as pursuing formal equality, individual rights, and colorblind methods. Instead, critical race scholars have sought to show that the law is socially constructed and as such is influenced by institutional and individual perspectives. Scholars have also argued that race, class, gender, and sexual orientation have always played a critical role in legal outcomes. In putting forth such arguments, critical race scholars often employed new styles for legal scholarship, which include storytelling and narrative.

This course examines the genesis of Critical Race Theory and explores its possibilities and limitations. This investigation requires thinking carefully about race and racism, as well as classism, sexism, and heterosexism. The course should provide an opportunity to challenge basic assumptions about race, law, and racial justice. We will do so in a respectful and collegial environment. Topics we will study include racial identity, the social construction of race, affirmative action, employment discrimination, identity performance, education, criminal justice, and voting rights.


Additional reading assignments to be posted on myWCL course page (see below).

Reading Assignments: Attached is a tentative schedule of reading assignments for the semester. In addition to the required casebook, I will distribute additional reading assignments throughout the semester. These will be available via myWCL course page. Please note that the topics may not necessarily coincide with class periods—some may occupy us for more or less time. I will notify you via class and myWCL course page of precise assignments in advance, to allow plenty of time to prepare. You are responsible for checking myWCL course page regularly for updates on assignments.

Class attendance and participation: You are required to read the assignments and attend class prepared to participate. Class discussion is critical to the success of this course. As a result, I place a premium on class discussion and participation, especially participation that displays your knowledge of the reading. I reserve the right to exclude or reduce the grade of students who are persistently absent or unprepared.

Guest Speaker Series: The class will have a series of lectures by expert scholars and practitioners working on issues of race and public policy. Their bios can be found via the links below.

Jumana Musa, Deputy Director, Rights Working Group, will discuss The Rise of Nativism and the Protection of Human Rights at Home

Joshua Civin, Counsel to the Director of Litigation, NAACP Legal Defense Fund will discuss Litigating for Educational Equity (date to be determined)

Bryan Sells, Special Litigation Counsel, Voting Section, Civil Rights Division at U.S. Department of Justice to discuss Voting Rights and Political Participation (invited)

Benjamin Jealous, President and CEO, national NAACP, will discuss Civil Rights as Human Rights (date to be determined)

Research Paper and Oral Presentation Requirements: Students are required to write a research paper in partial fulfillment of the course requirements. The paper may be used to satisfy the Upper–Level Writing Requirement. Students may write on any topic of their choice, as long as it is within the scope of the subject matter of the course. The paper must have a length of 30 pages and must be typed and double-spaced. In addition, students will be required to do a 10 minute oral presentation on their final paper. I will distribute a sign-up sheet for scheduling oral presentations within the next few weeks.

The requirements for research projects are as follows:

  • Students are required to submit, via myWCL drop box and e-mail, a thesis statement on Monday, September 30, 2013.

  • Students are required to submit, via myWCL drop box and e-mail, a draft paper for review and discussion by fellow students toward the end of the semester. The deadline for this draft will depend on the date you choose to present your paper. Drafts will be due one week prior to your presentation and paper presentations will be during the month of November. Once you choose your presentation date, the deadline for your draft will be inflexible, because I will be posting your draft to the myWCL course page to allow your classmates time to read the paper before your presentation. Please note that if this version of your paper is not sufficiently complete to allow for an effective class presentation and to allow me (and your classmates) to provide you with useful comments, then your final grade will suffer. To ensure the best possible grade in this class, turn in a completed paper, and then improve it with the benefit of the feedback you receive.

  • Revised Final papers will be due on or before Monday, December 09, 2013.

For the final paper submission, students must email the paper to me and to my assistant Ashley Allen. In addition, students must submit it to the myWCL drop box on the course page. Failure to submit the required writings in a timely fashion may result in a lowering of your grade.

Grading: Grades will be based primarily on the quality of the research paper. Class participation will be considered as well. Your final paper will count as 75% of your final grade. Class participation, which includes oral presentations on papers, will count as 25% of your final grade.

I. Introduction

A. What is Critical Race Theory?

B. What is Race?

  • Ian Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, pp. 21-32

  • Peggy McIntosh, Unpacking White Skin Privilege (MyWCL coursepage)

  • Barbara Flagg, Was Blind But Now I See, pp. 33-41

  • Stephanie M. Wildman & Adrienne D. Davis, Language and Silence: Making Systems of Privilege Visible, pp. 41-50

  • john a. powell, Post-Racialism or Targeted Universalism?, 86 DEN. L. REV. (MyWCL coursepage)

  • Film, “Race—The Power of an Illusion”

II. Interest Convergence Theory

A. Fulfilling Brown’s Mandate

  • Nancy A. Denton, The Persistence of Segregation: Links Between Residential Segregation and School Segregation, pp. 163-65

  • Sharon Rush, The Heart of Equal Protection: Education and Race, pp. 234-38

  • Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, pp. 742-46

  • Lia Epperson, True Integration: Advancing Brown’s Goal of Educational Equity in the Wake of Grutter, 67 U. PITT. L. REV. 175 (MyWCL coursepage)

B. The Current State of Racial Integration and Defining Discrimination

  • Integration Exercise

  • Martin Luther King, Jr., Letter from Birmingham Jail (MyWCL coursepage)

  • Parents Involved in Community Schools v. Seattle (MyWCL coursepage)

  • "The Rehnquist Court, the Resurrection of Plessy and the Elusive Definition of 'Societal Discrimination'", in AWAKENING FROM THE DREAM : CIVIL RIGHTS UNDER SIEGE AND THE NEW STRUGGLE FOR JUSTICE. Morgan, et al. Carolina Academic Press (2006) (MyWCL coursepage)

III. Beyond the Black-White Paradigm

  • Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, pp. 102-05

  • Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, pp. 106-11

  • Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, pp. 116-25

  • John O. Calmore, Race/ism Lost and Found: The Fair Housing Act at Thirty, pp. 166-70

  • Kevin R. Johnson, Civil Rights and Immigration: Challenges for the Latino Community in the Twenty-First Century, pp. 664-67

  • Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed “Los Angeles, pp. 655-57

    • Additional readings to be determined

IV. Intersectionality and Anti-Essentialism

A. Essential Identity and the Balance of Power

  • Adrien K. Wing, Introduction, pp. 594-95

  • Angela P. Harris, Race and Essentialism in Feminist Legal Theory, pp. 596-604

  • Angela Onwuachi-Willig and Osamudia James, The Declining Significance of Presidential Races?, 72 DUKE U. L. & CONTEMPORARY PROBS. (2009) (MyWCL coursepage)

  • Additional readings provided on myWCL

B. Racial Self-Identification

      • Angela Onwuachi-Willig, Just Another Brother on the SCT? What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 Iowa

  • L. Rev. 931 (2005) (MyWCL coursepage)

  • Jacquelyn Bridgeman, Defining Ourselves for Ourselves, 49 Seton Hall L. Rev. 1261 (2005) (MyWCL coursepage)

  • Kevin R. Johnson, “Melting Pot” or “Ring of Fire”?: Assimilation and the Mexican American Experience, pp. 676-80

V. Interracial Intimacies

A. Intersections Between Race, Sex, and Interracial Intimacy

  • Catherine Smith, Queer as Black Folk?, WISC. L. REV. (2007) (MyWCL coursepage)

  • Kevin R. Johnson, Race in America: Strom Thurmond’s Daughter and the Enduring Taboo on Black/White Marriages, S.F. Chron., Jan. 4, 2004, at D5 (MyWCL coursepage)

  • Randall Kennedy, How Are We Doing With Loving?: Race, Law, and Intermarriage, 77 B.U. L. Rev. 815, 820 (1997) (MyWCL coursepage)

  • Sophian v. Von Linde, 253 N.Y.S.2d 496 (N.Y. App. Div. 1964) (MyWCL coursepage)

  • People v. Godines, 62 P.2d 787 (Cal. Dist. Ct. App. 1936) (MyWCL coursepage)

  • Joanna Grossman, Shifting the Terrain of the Trial: What Did the Husband Know, at (MyWCL coursepage)

  • R. Richard Banks, Is Marriage for White People? (2011) excerpts

B. Race in Adoption and Family Planning

  • Palmore v. Sidoti, 466 U.S. 429 (1984) (MyWCL coursepage)

  • Zanita E. Fenton, In a World Not Their Own: The Adoption of Black Children, 10 Harv. Black Letter L.J. 39 (1993) (MyWCL coursepage)

  • Lynette Clemson & Ron Nixon, Overcoming Adoption’s Racial Barriers, N.Y. Times, Aug. 17, 2006 (MyWCL coursepage)

  • Dov Fox, Choosing Your Child’s Race (MyWCL coursepage)

VI. Racial Discrimination in Employment

A. What is it? Does it include the ways in which we work in our identities?

  • Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, pp. 127-30

  • Sumi K. Cho, Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, pp. 604-09

  • Marianne Bertrand, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination (MyWCL coursepage)

B. Battling Stereotypes

• Prejudice Speech Exercise

C. Evaluating the “New” Discrimination

  • Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, pp. 137-41

  • Timothy Davis, Racism in Athletics: Subtle Yet Persistent, pp. 313-17

  • Jerry Kang, Cyber-Race, pp. 723-26

  • Additional readings on myWCL

VII. Race Relations in Law School and Law Firm Environments

  • Brian Owsley, Black Ivy: An African-American Perspective on Law School, 28 Colum. Hum. Rts. L. Rev. 501 (MyWCL coursepage)

  • Walter R. Allen & Daniel Solorzano, Affirmative Action, Educational Equity and Campus Racial Climate: A Case Study of the University of Michigan Law School, 12 La Raza L.J. 237, 275-303 (2001) (MyWCL coursepage)

  • Mungin v. Katten Muchin Zavis, 116 F.3d 1549 (D.C. Cir. 1997) (MyWCL coursepage)

  • Additional readings to be provided on myWCL

VIII. Affirmative Action

A. Goals of Affirmative Action

  • Michael A. Olivas, Constitutional Criteria: The Social Science and Common Law of Admissions Decisions in Higher Education, pp. 304-311

  • Paul Brest and Miranda Oshige, Affirmative Action For Whom?, pp. 346-59

  • Lino A. Graglia, “Affirmative Action,” Past, Present, and Future, 360-65

  • Richard Delgado, Ten Arguments Against Affirmative Action—How Valid?, 365-74

  • Additional Readings on myWCL

B. The Beneficiaries of Affirmative Action

  • Sara Rimer & Karen W. Renson, Top Colleges Take More Blacks, But Which Ones, N.Y. Times, Jun. 24, 2004, at A1 (MyWCL coursepage)

  • Walter Benn Michaels, Diversity’s False Solace, N.Y. Times, Apr. 11, 2004, at 13 (MyWCL coursepage)

  • Lia Epperson, New Legal Perspectives: Implications for Diversity in a Post-Grutter Era, in Diversity in American Higher Education (MyWCL coursepage)

C. Does Affirmative Action Harm Minorities?

  • Richard Sanders, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004) (MyWCL coursepage)

  • David Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, 57 Stan. L. Rev. 1855 (2005) (MyWCL coursepage)

  • Stephanie Francis Ward, The Minority Partner Paradox, NAT’L PULSE, Jul. 21, 2006 (MyWCL coursepage)

  • Jill Schachner Chanen, Early Exits: Women of Color at Large Law Firms Tell ABA Researchers They Are Being Overlooked and Undervalued—Maybe That's Why They Are Leaving in Droves, ABA J. (2006) (MyWCL coursepage)

IX. Race and Criminal Justice

A. Infecting the Criminal Justice Process with Racial Bias

  • Katheryn K. Russell, Measuring Racial Equity in Criminal Justice: The Historical Record, pp. 409-11

  • Coramae Richey Mann, Defining Race Through the Minority Experience, pp. 412-13

  • Coramae Richey Mann, The Minority “Crime Problem, pp. 413-16

  • Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, pp. 425-29

  • Randall Kennedy, The Race Question in Criminal Law: Changing the Politics of Conflict, pp. 430-34

  • Decree exercise

    1. B. The Role of Juries in Ensuring Racial Justice in Criminal Law

  • Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, pp. 464-69

  • Nancy S. Marder, The Myth of the Nullifying Jury, pp. 469-73

  • Kenneth B. Nunn, Rights Held Hostage: Race, Ideology and the Peremptory Challenge 474-87

    1. C. Resolving Racial Profiling

    2. Profiling exercise

X. Student Paper Presentations and Discussion

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