Race, racism, and american law: I. What is race?

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A. Introduction: Common Constructs of Race:

1. Physical Appearance: You are what you look like.

Critique: A lot of people don’t look like their race.

2. Hypodecedent: % of blood

Critique: Arbitrary method in determining who is black. But there is no such thing a “black” blood. Used as a tool for white supremacy.

3. Cultural/Political Constructs of Race: defining race through cultural traditions and political views. (i.e. Clarence Thomas is white).

Critique: Culture changes over time, really just reinforcing stereotypes.

4. Self-Identification: We identify our race for ourselves

Critique: People could identify with race other then their own. (Soulmanning)

5. Common Knowledge: You are the race that people think you are.

Critique: What people perceive you to be changes over time. (Too inconsistent)

6. 3 Races of Man: Biological constructs of race: “Caucasoid”, “Negroid”, and “Mongoloid” as defined by Count Arthur de Gobineau’s Essay on Equality of Races, 1853.

Critique: Based on an ignorant view of the world, overlooking that there are more than 3 races (i.e. Indians), and theory doesn’t include bi-racial.

7. National Origin: Race is defined by where you came from

Critique: Nat’l origin is different from race.

B. 2000 U.S. Census Bureau: Federal Government’s construct of race has 5 distinct racial categories, and 1 catch all category.

1. White: Person with origins from Europe, North Africa, or the Middle East.

2. Black / African American: Person with origins from any racial groups of Africa.

3. American Indian / Alaska Native: Person with origins from the original people of North/South America, and who maintain tribal affiliation or community attachment.

4. Asian: Person with origins from the Far East, Southeast Asia, or Indian subcontinent.

5. Native Hawaiian and Other Pacific Islander: Person with origins from Hawaii, Guam, Samoa, or Other Pacific Islands

6. Some Other Race: Including person with origins from Mexico, Puerto Rico, Central/South America or Other Spanish Culture or Origin, regardless of race.
C. Washington Post, “The Evolution of Identity”

1. The U.S. Census has changed its classifications of race and ethnicity several times.

2. The first census classified free residents as either “white” or “other”; while slaves were counted separately.

3. Mulatto was a racial category during the late 1800's, expanded to Quadroon, Octoroon by 1890.

4. Hispanic origin became a category in 1970.

D. Wright, “Who’s Black, Who’s White and Who Cares: Reconceptualizing the United State’s Definition of Race and Racial Classifications”

1. Thesis: Race is a significant factor in American life, but society’s failure to define race substantively is one of the most compelling legal problems currently facing this nation. The law has provided no consistent definition of race and no logical way to distinguish members of different races from one another. This article addresses the problem of defining race by examining past and present conceptions of race and racial classifications - starting with the historical origins of the need to define race, and moving to the need to define race today.

2. Historical Need to Define Race: The need to define race grew out or 2 phenomena:

a. The decision to deny blacks and Indians the same treatment as whites under the law. AND

b. The birth of children who had only one white parent or whose ancestors were not all white.

3. Early Statutory Attempts to Define Race: focused on defining who was black

a. VA was first state to offer a statutory definition of race. The 1st statute, 1862, declared that the status of a child’s mother determined the status of the child, resolving the problem with mix race children born of slave masters and female slaves.

b. One Drop Rule: By 1910 most southern states consider a person with any African or black blood in their veins was black under the law. (Definition of white became more and more restrictive with the increasing likelihood that biracial people could be classified as white)

c. These rules illustrate the statutory favoritism for white racial purity and a belief that at some point in history there were pure white, black, and indian races. These law do not define race rather blackness.

4. Early Attempts by Courts to Interpret Race Statutes:

a. Slave Era: Hudgins v. Wright, 3 generations of slave women sued for freedom arguing that they were descendants of a free white ancestor. Blacks had the burden of proof of proving that they were free; whites and indians were presumed free unless their accusers could prove their slave status.

b. Separate but Equal Era: Plessy v. Ferguson, S.C. practiced avoidance, refusing to address the issue of racial classification, unwilling to concede that racial rules were too difficult to enforce.

5. The Need to Define Race Today: The need to remedy past and present discrimination compels our society to develop a consistent system of racial classification.

a. 3 problems with the current way our Gov’t defines race.

i. Racial classifications lack internal consistency: racial definitions vary with the group being defined, sometimes using Nat’l origin to define race.

ii. There is no treatment for mixed race individuals: No classification for mixed raced individuals.

iii. There is no provision for racial verification: Most racial info is verified by the self-definition of the individual. Increasing the likelihood of racial fraud (i.e. soulmanning, whites passing for blacks to gain employment, education, and political opportunities).

E. Perea, The Black/White Binary Paradigm of Race

1. Thesis: A paradigm is a set of shared understandings that permits us to distinguish which facts matter in the solution to a problem and which don’t. Paradigms of race shape our understandings and definition of racial problems – but focusing on the white/black paradigm harms our analysis of racial problems because it ignores or marginalizes all other races (those that do not fit in the box are not seen at all).

2. 2 Critical Race Theory Articles Highlight the Black/White Paradigm:

a. Hacker, “Two Nations: Black and White, Separate, Hostile, Unequal”; Sees blacks as the sole victim of white racism. All other racial groups sit as passive spectators, while the two prominent players try to work out how or whether they can co-exist with one another. Hacker feels that other minority groups don’t experience racism like blacks because they can put visible distance between themselves and black Americans.

i. Perea’s Critique: by focusing only on black and whites, Hacker renders all other minority groups invisible, characterizing them as passive, voluntary spectators. The Black/White paradigm must be expanded because it allows writes like Hacker to ignore other non-white races, which in turn encourages others to ignore them as well.

b. West, “Race Matters”; Studies the relationship of blackness to whiteness and the exploration of avenues to alter the unsatisfactory state of that relationship. West views non-black groups with great suspicion (because in their attempts to be identified as white, they have become more racist and disparaging to blacks), and characterizes their resistance to racism as sight though significant.

c. Perea states that no meaningful analysis into the current racial problems can be made without recognizing the experiences of other Americans who also are subject to racism in profound ways.

F. American Demographics, Time and the Melting Pot

1. Thesis: One way to measure the differences between ethnic groups is by measuring the differences in lifestyles. These differences show up in how each race spends time, and indicate the importance of work, family, and personal fulfillment to each group. Each respondent completed a daily time diary to show the number of minutes spent per day doing various activities. (Statistics gathered though telephone interviews 8000 adults, with Blacks, Asians, and Hispanics making up less than 30% of total respondents)

a. Evidence of Significant differences:

i. Whites spend more time than minorities (could reflect their higher level of homeownership);

ii. Hispanics spend the least amount of time working, but greater amounts of time to child care;

iii. Asians’ commitment to learning and nonmaterial activities is evident by their low shopping and TV time.

b. No convergence of blacks and whites with time use, even people of with similar backgrounds and social levels still show differences according to race. Blacks watch more TV, spend more time at church, do less housework, and do more child care.

G. Gladwell, The Sports Taboo: Why Blacks are Like Boys and Whites are Like Girls

1. Thesis: There is a genetic component to the differences in athletic performance between whites and blacks. This is very taboo because there is a fear that athletic superiority means intellectual inferiority. Gladwell thinks this fear is ridiculous, few object when medical scientists talk about epidemiological differences between the races (i.e. higher incidence of hypertension in blacks, earlier signs of puberty in black girls), so why aren’t we allowed to say that there might be athletically significant differences between blacks and whites.

2. Evidence:

a. Medical Support: Blacks seem to have on average: greater bone mass than whites, slimmer hips, wider shoulders, and longer legs. Greater genetic variability in the African population than the rest of the world combined. Because of this one can expect more variable in respect to almost anything with a genetic component.

b. Result of Differences: In track, Blacks recorded 15/20 fastest times last ear in the men’s 10,000 meter event. There is a point where it becomes foolish to deny the fact of black athletic prowess.

c. The difference between blacks and whites at sports is analogous to the difference between boys and girls in Math; the difference in genetic variability, NOT averages.

i. The average math ability of boys and girls is the same, but their distribution isn’t. There are more boys at the top and at the bottom of the curve then girls but fewer boys in the middle. While most girls are concentrated in the middle. The difference between the two, is seen as a difference in variability.

d. Same is true for the differences between the races. It’s important to understand that the general racist stereotype involves the difference between averages. The idea that the average white is superior to the average black.

i. But using the math analogy, if one were to believe that black intelligence was more variable than white intelligence, and then it would be impossible to construct a stereotype about blacks. Since if one were to believe that a large of blacks were dumber than whites, then one would have to admit that there are a lot who are smarter than whites. The critical point to understand in relation between race and athletic performance is that the black domination in elite sports is really a difference in variability not averages.

e. Comparing elites athletes tells very little about differences between races, since elite athletes represent the fringe of genetic variability.

f. Cultural Factors in Difference: some difference in ability isn’t genetic in origin.

i. Social science shows that boys attribute math success to their ability while girls attribute success to hard work, but if she fails she’ll believe she isn’t smart enough (‘learned helplessness”, failure is seen as insurmountable), while the boy will blame failure on a lack of motivation (anything but ability).

ii. Same is true in athletics, there are unwritten rules that blacks achieve through natural ability and whites through effort. Whites have been saddled with a type of “learned helplessness”, the idea that its fruitless to try and compete at the highest levels because they have only effort on their side.

g. Success in athletics depends upon having the right genes and a self-reinforcing belief in one’s own ability.
H. Liu, Notes of a Native Speaker

1. Thesis: Assimilation is not just a series of losses, what is lost is not necessarily sacred. Assimilation doesn’t mean “becoming white” as much as it means “becoming at ease in the world.” I the process of assimilation, America is redefined in spirit and blood, into something afar more commingled and borrowed than anything previous generations ever knew.

2. The process of assimilation doesn’t come from seeking to assimilate, but from refraining from actively trying not to assimilate, “when you leave things alone, you leave it to a torrent of change.”

3. Assimilation doesn’t mean to be identified as “white”, but to be integrated. To identify with the economic / political power and influence of whites, not with their “whiteness.” To assimilate doesn’t mean becoming a traitor but rather becoming part of the mainstream

I. Lopez, The Social Construction of Race

1. Thesis: Race is a social construct based on human interaction rather than natural differentiation. Race doesn’t exist in some absolute, physical sense, but it is real. Blacks and Whites are social groups, not genetically distinct branches of humankind.

2. Racial Formation: 4 important factors of social construction of race are:

a. Humans create races;

b. Race (human construct) constitutes an integral part of a whole social fabric that includes gender and class relations.

c. The meaning-systems around race change quickly (race is made of plastic not rock);

d. Races are constructed relationally, against one another, rather than in isolation.

3. Race is defined as a vast group of people loosely bound together by history and ancestry. Race is an ongoing, contradictory, self-reinforcing, plastic process.

4. Biological Race? NO, there is greater genetic variation within racial a population then between two different racial populations.

5. Biological race is an illusion, Social race is not.

6. Evidence is the changing view of Mexicans from a nationality into an inferior race.

J. Lopez, White by Law

1.Thesis: Whiteness exists at the vortex of race in U.S. law and society and the “whiteness” as it is currently constituted should be dismantled.

2. Being white was a prerequisite to citizenship until 1952, so it became important to be able to define what “white” was legally. Therefore, it was important for the prerequisite courts to articulate rationales for the boundaries of whiteness.

3. 2 explanations of race that predominated in the prerequisite courts:

a. Common knowledge test (race as rationales that appealed to popular, widely held conceptions f race and racial divisions)

b. Scientific evidence test (justified racial divisions by reference to the naturalistic studies of humankind, focusing on the body and geographic origin of the person.)

4. The failure of science to confirm through empirical evidence natural differences between the races, lead the court to rely more on the common knowledge test as the appropriate legal meter of race.

5. White was constructed by prerequisite courts in a 2-step process;(1) Courts decide who is not white in a case-by-case basis (rather than defining who is white)

(2) The Court attaches negative characteristics to those who are non-white (NOT white meaning inferiority.)

6. Whiteness perpetuates and necessitates patterns of superiority and inferiority. For each negative characteristic ascribed to people of color an equal but opposite positive characteristic is given to whites.

7. The prerequisite cases are an example of the value whites place in their identity, and of their willingness to protect that value even at the cost of justice. When confronted with the falsity of their white identity, whites do not abandon their whites, but embrace it and protect it.

A. Nunn, Law as Eurocentric Enterprise

1. Thesis: Law is a eurocentric enterprise, part of a broader cultural endeavor that attempts to promote European values and interests at the expense of all others. It does this by reinforcing a eurocentric way of thinking, promoting eurocentric values and affirming the eurocentric cultural experience.

2. Critique of eurocentricity:

a. The problems of racism, sexism, classism, and other problems endemic in western societies flow from the worldview and conceptual system that are the core of European culture: materialism, aggression, competition.

3. Attributes of eurocentricity:

a. dichotomous reasoning: the employment of either/or reasoning instead of a more holistic approach to processing information. world is described through a comparison of opposites;

b. hierarchies: the employment of hierarchies which value all realities as better than, worse than, something else. Establishing relationships based on power.

c. analytical reasoning: the use of analytic reasoning in which an item under consideration is broken down into its constituent parts before each is separately examined;

d. objectification: the world beyond the self is viewed as a collection of objects to be controlled;

e. abstraction: distillations of ideas take precedence over ideas in context;

f. extreme rationalism: belief that the universe can be explained wholly in rational terms;

g. desacralization: the eurocentric worldview leaves no room for the operation of sacred forces and despiritualizes the universe.

4. Law, hegemony, and control: Law contributes to the eurocentric hegemony by:

a. organizing and directing white institutions and cultural practices,

b. policing white culture (determines what’s valued),

c. legitimizes white institutions and practices through the psychology of white dominance.

5. Whenever the European American majority in this country want to ostracize, control, or mistreat a group of people, it passes a law. The instrumental function of the law, then, is central to ensuring that the world is structured and organized according to Eurocentric principles. The law, then, sets the boundaries for acceptable forms of resistance to white oppression and dominance.

a. Consequently, the best choice for people of color who choose to resist white dominance is to reject the law, to become outlaws, since by refusing to relate to the western order, these individuals succeed in robbing Europeans of some of their power.

6. Law, ideology, and the politics of eurocentricity: Contesting eurocentricity is primarily a cultural struggle that calls for the creation of a separate cultural base that values and responds to a different cultural logic than does eurocentricity.

a. Thinks law school is harmful to black students because it distances black students from their culture and diminished their ability to conceptualize problems and craft solutions in ways that can contribute to the liberation of blacks: law school forces black students to think in eurocentric ways.

b. To resist eurocentricity, African Americans must interpret the law in light of their own cultural perspectives. This means the creation of an African-centered approach to law that is grounded on the concept of a non-material, spiritually infused universe. To do this, law as we now know it can no longer exist. There can no longer be any separation between law and morality, between science and belief, between practicality and justice. Law’s Empire must be overthrown.
B. Butler, By Any Means Necessary: Using Violence and Subversion to Change Unjust Law

1. Thesis: Minorities should not choose “any means necessary” even if the result is that they are prevented from opportunities to eradicate discrimination. People of color must consider the full range of their powers limited by morality.

2. 3 observations on how and why the law changed from oppressing blacks to liberating them:

a. The conversion of discriminatory laws was created in part by violence and subversion. (i.e. slavery was ended by the Civil War, civil disobedience by civil rights leaders)

b. The transitions in race relations law from supporting slavery & segregation to emancipation & integration took a long time.

c. There has always been diversity of opinion in the minority community on how to respond to oppressive laws or if laws were even oppressive. (in the 60's many blacks didn’t fight for civil rights)

3. Current Discriminatory Laws and non-extremist methods used to change those laws.

a. Capitol Punishment: this issue is frequently challenged on the ground that it is imposed arbitrarily and in a racially discriminatory manner. Crt rejects these arguments b/c they fail to show that the criminal justice system has a discriminatory intent.

i. Attempts to make changes to the political process are also unsuccessful, legislature is willing to tolerate racially discriminatory executions in order to preserve the death penalty.

4. Killing to save lives? a system of law that tolerates discrimination is illegitimate and needs to be overthrown or forced to change by any means necessary including violence.

a. 2 kinds of violence: (1) used to create pressure on the lawmakers and judges to halt discriminatory laws and (2) targeted violence directed at decision makers in the criminal justice system.
A. International Convention on the Elimination of All Forms of Racial Discrimination

1. Defines racial discrimination as any exclusion, distinction, restriction, or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life.

          a. This construct of racism seems to be better for minorities than the one the U.S. Supreme Court articulated in Washington v. Davis, because the CERD (Convention on the Elimination of all forms of Racial Discrimination) construct has no motive requirement, actions having racially discriminatory effect are racist.

          b. Washington v. Davis (1976): A standardized written test used as an entrance requirement to become a DC cop was challenged on equal protection grounds because blacks didn’t do as well on the test as non-blacks. The Supreme Court held that the test was not intentionally racist. established an intent requirement for equal protection violations based on race

2. Does the CERD consider affirmative action racist? Yes, but Art. I §4 says that special measures taken for the sole purpose of securing adequate advancement of certain groups requiring such protection as may be necessary to ensure such groups equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination (as long as such measures do not lead to the maintenance of separate rights for different racial groups).
B. Wolf, The Racism of Well Meaning Whites

1. Thesis: Racism is prevalent in white America even among the “well meaning” liberals with no knowledge of their own racism. The racism of well-meaning white people lies not in what they do but in how they see. Racism (in a racist culture) acts as a shameful scrim, a dirty curtain woven of the fears and inequalities that surround and envelop the fact of race. And by not telling the whole truth about racism, WMWP slow down the work of moving forward. (Wolf uses anecdotal stories as evidence)

2. Wolf thinks that the silent racism of WMWP can be even more dangerous than that of the gutter kind, which is practiced largely by people with little real power.

a. Subconscious stereotypes?

i. The look that passes from white person to white person in the face of black achievement. The WMWP says, “Of course, ___ should have an African American ____” but their look says “We can get back to the real meritocracy of my life”. The glance of tokenism is satisfied and the black career is derailed, horizons are lowered, and economic opportunities shut off.

ii. Mentioning that their doctor or lawyer is black but never a domestic servant.

b. Problem is that WMWP struggle with their own guilt and fear about racism rather than to attack the real struggle at hand (the struggle to see clearly across race).
C. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism

1. Thesis: Racism is in large part a product of the unconscious, so the body of law that governs the application of the equal protection clause to cases of alleged racial discrimination should recognize that racism is irrational and normal (our entire culture is afflicted). Racism is an unconscious, irrational behavior that is not based on established fact, and is not govern by rational thought. Racism arises from the assumptions we have learned to make about the world, ourselves, an others as well as from the patterns for our fundamental social activities. Lawrence argues that racism is in all of us and is dysfunctional in that its irrationality prevents the optimal use of human resources.

2. Lawrence uses psychoanalytic theory to explain racism’s irrationality:

a. 2 mental processes govern how the mind works.

i. The Id occurs outside of our awareness and consists of desires, wishes, and instincts that strive for gratification. (The id is the racist part of our mind)

ii. The Ego happens under our conscious control and is bound by logic and reason, we use this process to adapt to reality. All id impulses must first pass through the ego, which decides whether to allow, modify, or reject the impulses.

b. Unconscious Source of Racism? When asked to explain their prejudices, most people cite instinctive, unexplained distaste at the thought of associating with the out-group as equals or cite reasons not based on established fact and contradicted by personal experience.

c. Experimental Proof: 3 fictional groups were created and attributed with stereotypical characteristic of real racial groups. Those who hated blacks and Jews also disliked the fictional groups and advocated restrictive measures against them.

d. Additional evidence shows that an individual ‘s racially discriminatory behavior usually improves long before corresponding attitudes toward members of the out-group changes.

i. This is proof of the unconscious nature of racism, because behavior is more frequently under the control of the ego than attitude. Attitude reflects the less conscious part of the personality, where change is more complex and difficult.

3. Lawrence also examines racism using the contrasting framework of cognitive theory:

a. Cognitive theorists view human behavior including racial prejudice as an individual’s attempt to understand his relationship with the world, while also maintaining his personal integrity.

b. Cognitivists see the process of categorization as the source of racial and other stereotypes.

i. People exaggerate differences between their group and other groups; while minimizing differences between members within their group.

ii. A person with a stereotype will remember and interpret past events in ways that bolster and support their stereotyped belief; while never being aware of the process that causes him to ignore the facts that do not conform to his rationalization.

c. The social categories in which people are assigned developed over a long period of time and are transmitted to individual members of society by a process called assimilation.

i. Assimilation means learning and internalizing preferences and evaluations. Individuals learn cultural attitudes and beliefs about race at an early age through emotional identification with what they see their parents do.

ii. People learn racial classifications unconsciously and tend to reinforce tem as a means of maintaining identity.

4. Lawrence’s critique of Washington v. Davis:

a. If the purpose of the law’s discriminatory intent requirement is to identify a morally culpable perpetrator, the law fails.

b. Instead of viewing racism as only a consciously held motive, the law should be concerned when the mind’s censor successfully disguises a socially repugnant wish like racism if that unconscious motive produces a discriminatory result.

D. Weissberg, White Racism: the Seductive Lure of an Unproven Theory

1. Thesis: There are 2 reasons white racism is popular ((1) empirical evidence proves it (science) or (2) its politically convenient). Weissberg claims that there is no good evidence on the impact of white racism (its negative impact is always assumed) and the methodology that supports it is invalid. The theory of white racism lets the majority off the hook by letting them know that racism can never be eliminated and gives young blacks the belief that they are hated, will always be hated, and there is nothing they can do about it.

2. The science of white racism has three basic principles: (1) All whites have negative views of blacks, (2) These negative views deeply embedded in our society and are written into our laws and institutional arrangements, and (3) White racist beliefs are absorbed by blacks themselves and work their destructive power inside out.

3. Weissberg points to a study by Joe Feagin (study finding that a racist environment is the reason for the growing dropout rate from universities by blacks) as evidence of the unreliability of the white racism theory.

a. Weissberg characterizes Feagin’s findings as circumstantial at best. Many of the complaints from black students were similar to problems faced by most students (white and black). Feagin’s accusations of racism not supported by evidence of malice, physical intimidation, or slander.

4. Weissberg thinks white racism maintains so much currency because it’s cheap and easy. Its cheaper to blame white racism rather than create meaningful social programs that would really help people. Furthermore there are some people who benefit by perpetuating the white racism myth (i.e. diversity counselors, academics).

E. Grillo & Wildman, Obscuring the Importance of Race: The Implications of Making Comparisons between Racism and Sexism (or Other-isms)

1. Thesis: Analogizing to race can obscure and marginalize the discussion and experience of racism.

a. Analogizing is dangerous because the “analogizer” believes that their situation is the same as another’s, allowing the “analogizer” to mistakenly believe that they understand the other person’s situation fully. This leads the analogizer to forget the differences and allows him to stay focused on his own situation without grappling with the other person’s reality. Analogies are helpful in providing greater comprehension of other’s experiences and realities but also present the danger of false understanding.

b. When racism and sexism are compared the significance and impact of race is minimized. Three recognizable patterns emerge when sex discrimination was compared to race discrimination:

(1) Essentialism: When racism and sexism is compared, race disappears because in making the analogy the world is divided up into men and women. Race is seen as distinct category that can be neatly separated from the discussion of gender. Essentialism is a problem because it assumes that the women’s experience is the same for black women and white women; black women become white for the purposes of a discussion where there is one monolithic women’s experience.

(2) Taking Back of Center Stage: Analogies move race from the center of a discussion and replaces it with the experience being analogized, so that white issues remain or become central in the dialogue

(3) Appropriation or rejection of pain: When whites analogize, they believe that they understand the experience of racism, and they either appropriate the pain of the aggrieved or they reject its existence. The insight into racism by personal experience can’t be duplicated, meaning whites have no standing to talk about racism. The privilege of whiteness is the freedom not to think about race.

c. Instead of drawing false inferences of similarities from analogies, it is important for whites to talk about white supremacy.

F. Kennedy, My Race Problem and Ours

1. Thesis: Racial pride and kindship should be eliminated and an individual’s pride should come from something they have accomplished personally not from what your race has accomplished. Neither racial pride nor racial kinship offers guidance that is intellectually, morally, or politically satisfactory.

2. Kennedy feels that while no one should be ashamed of their race, no one should congratulate themselves on their race.

a. Most blacks embrace racial pride to take delight in the racial designation that has long been stigmatized in America. The value of this pride is that it combats the prevalent ideas that blacks are stupid, ugly and low.

b. The vice of racial pride is the belief that blacks should value other blacks more highly than other people. Kennedy rejects this racial kinship and instead argues for the unencumbered self. The unencumbered self is free and independent, unencumbered by aims and attachments it does not chose for itself.

3. Analogy between race and family: Kennedy rejects this argument because race is much more populous than a family, and therefore can’t give rise to the same feelings of loyalty.

4. Kennedy discusses Yale Professor Carter, who invites black—but not white—students to his house every year for dinner because he feels an emotional connection with them. Kennedy contends that teachers shouldn’t treat their students differently, but instead should reach out to all students in need—but not based on race.

a. Only in a case where black students were being widely ignored would it be morally correct for a professor to reach out with special vigor to the black students– such an outreach would be based on distributive justice, not racial kinship: give attention to those most in need, then white professors would be as morally obligated to address the problems of race.

b. This idea of outreach to those in need—but not based solely on race, could help convince white Americans that the problems that disproportionately affect black Americans are not the special responsibility of black people, but everyone’s problems.

c. An appeal to an ideal untrammeled by race enables any person or group to be the object of solicitude, no person or group is racially excluded from the possibility of assistance, and no person or group is expected to save its own.

5. Kennedy thinks it is equally wrong for whites to mobilize themselves according to race as it is for blacks to do the same.
G. Loeb, Espionage Stir Alienating Foreign Scientists in U.S.; Critics of Distrust Fear a Brain Drain

1. Thesis: in the wake of firing of Chinese American Wen Ho Lee by the U.S. Dept of Energy, many Chinese American scientists are being racially profiled by the U.S. Gov’t. The current political culture of distrust of Asian American scientists may be causing a reverse brain drain, making the normally attractive scientific positions in the United States to become less attractive to honest scientists who do not wish to be scrutinized based on this countries' prejudices

2. The good reputation of Chinese Americans—which took years to build, has been tarnished. Their loyalty and their contributions to this country have been challenged and questioned. Many have responded by turning to the private sector for employment.

3. The ultimate irony is that the U.S. leads the world in commercial and defense technology because it has been the most open scientific system in the past 50 years—welcoming immigrants, refugees, and foreign born citizens to its universities, corporations, and defense research facilities. And now, we are suspicious of those we’ve welcomed.

H. Cohen, Closing the Door on Crime

1. Thesis: Store keepers who treat young black males differently (poorly) should not be seen as racist; they are merely using race as a factor, along with gender and age, to make a business decision based on societal realities they themselves did not create. Recognizing race as a factor in making a decision is not racism

2. Cohen points to store keepers—black and white—who will not admit young black men into their stores, reacting out of fear to a combination of factors) race, youth, and sex. The reasoning is more or less the same: young black males commit an inordinate amount of urban crime.

3. All policies based on generalities have their injustices but that doesn’t mean that the policy is racist or wrong.

I. D’Sousza, The Myth of the Racist Cabbie

1. Thesis: You can have prejudices and hold stereotypes and not be racist, because some stereotypes/discrimination makes sense.

2. Some stereotypes are cross-cultural even black cab drivers will not pick up black fares, because blacks are more likely to rob or injure the cab drivers. D’Souza says these fears are borne out by their experiences. So not all taxidrivers who discriminate are racist.

a. Statistics: blacks make up 12% of the population, but 39% of those arrested for aggravated assault, 42% of those arrested for weapons possession, 43% of those arrested for rape, 55% of those arrested for murder, and 61% of those arrested for robbery.

b. Jesse Jackson recognized this when he said, “There is nothing more painful for me than to walk down the street and hear footsteps and start to think about robbery, and then see it’s somebody white and feel relieved.”

3. Problem with the liberal paradigm of race is the idea that all group perceptions are misperceptions.

a. The view that blacks on average are more rhythmic than whites is considered wrong and stereotypical by current liberals but blacks have been celebrated for their natural rhythmic abilities since the times of the Greeks and Romans (who held no negative view of black skin color).

b. Helmreich, “The Things They Say Behind Your Back”, concludes that almost half of the stereotypes have a strong factual basis. By reversing stereotypes, we can see that stereotypes persist because of the characteristics of the group they describe it would be silly to say that Koreans are lazy, blacks tight with a dollar, and Jews dumb, because this isn’t borne out by experience.

4. Rational discrimination’s economic justification is obvious in some areas look at car insurance, teenage boys have to pay higher rates—this is unfair to the teenage boy who is a skilled and cautious driver, but the company must take account of the statistical habits of his group. This type of discrimination applies the logic of predictive evaluation, discriminating against people in high-risk categories.

a. Race serves as a proxy for aspects of productivity that are relatively expensive or impossible to measure. Rational discrimination is not racist because it is not based on a doctrine of intrinsic superiority and inferiority.

5. There are three models of how to deal with discrimination:

a. Affirmative action: D’Souza says this doesn’t make sense, rational discrimination is objectionable because it treats competent individuals as incompetent on account of their involuntary membership in a disfavored group. This is hardly remedied, however, by affirmative action, which treats comparatively incompetent individuals as competent on the basis of their membership in a favored group.

b. Make all discrimination, including rational discrimination, illegal: would require massive state intervention in the private sector to unmask those who discriminate.

c. Make Gov’t race-neutral, but allow the private sector freedom use rational discrimination: rational discrimination would be legal, and so would private-sector affirmative action. Discrimination is far more problematic when perpetrated by Gov’t institutions than by private individuals and institutions.

i. Under this plan if only some employers arbitrarily discriminate in an irrational way, then competitive markets will impose a financial cost on that discrimination, because employers who refuse to hire the best person for the job are likely to suffer relative to their competition.
J. Fountain, No Fare: You’re Black. You’re Male. You Just Want a Cab. Why Is It So Cold Out There?

1. Thesis: Racism comes in two forms, both damaging: (1) slap in the face, (2) wind: Wind is the subject of the article, it ruffles and disturbs, you cannot anticipate it or decipher its source; you incorporate it into your life. Not getting a cab is wind racism, the anonymous racism that effects black men every day.

2. Evidence: He recounts an experiment he does with a white friend, trying to hail down cabs; many times a black man can not get a cab and if they do most don’t want to travel to SE. Fountain recounts stories that are common to black men, experiences where people react to black men with exaggerated caution.

3. Fountain would disagree with D’Souza that there is rational discrimination. Fountain points to statistics:

a. Statistics of crime in America: only .81% of blacks are arrested and charged with a violent crime; more than half the people committing violent crime in America were white.

b. Half of people arrested on charges of committing violent crimes were white. Blacks usually victimize other blacks, and whites victimize whites. Statistically a white person has more to fear from a white person than a black person.

c. Nearly 7 out every 10 people arrested and charged w/ a crime are white.

4. Other arguments: Fountain feels that people don’t see him but an exaggerated image of him of a large black man, out of safe surroundings.

a. BET chairman goes through awkward experience of being black in America and the assumption of being hired help (chauffeur).

K. Armour, The Intelligent Bayesian- Reckoning with Rational Discrimination

1. Thesis: Armour’s article is a critique of rational discrimination. Armour contends rational discrimination isn’t reasonable because the costs of racism are too high when you’re wrong. These costs (identified by Fountain and Loeb) can permanently damage the black community.

2. A conservative Black economist refers to someone like Cohen as an “Intelligent Bayesian”, named for the father of statistics. For a Bayesian, like Cohen, stereotypes are statistical generalizations, when accurate, can help people make speedy and difficult decisions with imperfect information. The intelligent Bayesian thinks “ I must act differently towards blacks because it is logical to do so”. The Bayesian relies on numbers that don’t reflect racist attitudes among whites, but the statistical disproportionality with which blacks commit crimes.

a. The intelligent Bayesian argues that after considering race, age, gender, dress, body movement, etc., he decides how to respond. After tallying up these “objective” indices of criminality, that his discriminatory conduct was reasonable because it was rational.

3. Armour argues that social stereotypes are not mere bits of statistical information but are well-learned sets of associations among groups and traits established in children before they reach the age of judgment.

a. We selectively interpret data, we affirm the facts that validate stereotypes and ignore those that don’t; The Bayesian assimilates negative statistical information about blacks while ignoring contradictory or positive statistical information, undermining their claim of objectivity.

b. Biases in the criminal justice system undermine the reliability of statistics themselves. Although the rate of robbery arrests among blacks is approx. 12x that of whites, it doesn’t follow that a particular black person is 12x more likely to be a robber than a white person.

c. Socioeconomic status largely explains overrepresentation of blacks in committing more violent street crimes. Armour argues that crime rates are tied to unemployment and poverty.

4. Why Rational Discrim. is not reasonable: Whether a reaction is reasonable depends not only on the rationality of the underlying factual judgment but equally on the consequences of error if those judgments are mistaken. Armour stresses looking at the cost of potential mistakes.

a. The flaw of the Bayesian argument is that it fails to take into account the costs of acting on racial generalizations.

b. If the costs of discrimination are greater than the benefits, the discrimination is not rational.

5. The reasonable person does not discriminate against blacks on the basis of racial generalizations.

a. The decision to discriminate against blacks on the basis of statistical generalizations is racist because it strikes an unreasonable balance in a way that wrongly devalues the interest of blacks as being treated as equal citizens. (“reasonableness” is a value-laden judgment).

6. The risks of error in racial generalizations are high and the social consequences of error remain grave.

a. Consequences of error: injury or death to numerous innocent victims, chilling effect of black participation in core community activities, humiliation, stigmatization, reduces blacks to predicable objects w/o autonomy.

7. Armour’s Suggestions:

a. Must do more to reduce the risk of being mistaken; the willingness to claim to know something (i.e. that the person is about to rob you) must vary according to the social consequences of the error;

b. Its necessary to balance the cost of waiting for the “ambiguous” or “suspicious” black to clarify violent intentions against the costs of not waiting. Risk of being robbed is minimal compared with the certainty of humiliation the black man would feel if the belief was mistaken.

A. Introduction to Legal Views:

1. Traditional View:

a. judges interpret the law; “the science of law”

b. Judge can look at the law and do what is right

c. The rule of law exists and can be scientifically applied to different cases to get a just and accurate result.
2. Legal Realism:

a. Judges decide what outcome they want; Judges settle cases by reliance on value-laden personal beliefs.

b. Then they interpret the law to achieve that result.

c. Legal realists argue against the use of legal rights in attempting to achieve the goal of racial equality.

d. Critiques of the Traditional view:

i. Political critique: judges are outcome determinative because of their power they chose the law they like.

ii. Deconstruction critique: words are always susceptible to different meanings, no possible to have one rule to get justice every time; words only mean what you want them to mean.
3. Racial Realism:

a. Rule of law is a myth, judges are outcome determinative

b. Racism is permanent.

c. Interest Convergence: minorities only make gains when those gains are in the interest of the white majority.

d. Whites make compromises with each other at the expense of minority interests.

e. Racial progress is cyclical, peaks are followed by valleys.
4. Relationship Between The Different Legal and Race Theories

Legal Realism

Critical Legal Theory


Critical Race Theory Feminist Jurisprudence


Racial Realists Different Voices

B. Bell, Racism is Permanent Thesis

1. Thesis: Racism is an important stabilizing force without which whites would be torn apart by a class war. Racism allows whites to bond across socioeconomic lines, therefore racism is permanent. Black will never attain full equality. Whites will never actively support social reforms needed to address the gap between rich and poor because they fear unjustly benefiting blacks.

2. Racism is an integral, permanent, indestructible component of society, racial patterns will always adapt in ways that maintain white dominance because democracy and racism reinforce each other.

a. The majority makes the law in the U.S. and the majority is white. The absence of overt signs of discrimination creates an atmosphere of racial neutrality and encourages whites to believe that racism as a thing of the past.

b. Poor whites politically have a lot in common with African Americans, and yet they do not align themselves with African Americans at he voting booth. This is not in the best interests of poor whites.

i. They are lulled by comforting racial stereotypes and fearful that blacks will unfairly get ahead of them.

c. Black Americans get jobs only after white applicants have been accommodated.

3. Bell highlights the work of Fanon who argues two irreconcilable points:

a. (1) Modern structures in society are poisoned with racism and can’t be overturned; and (2) People of color should fight against racism.

b. Bell argues that the struggle itself is important for blacks suffering the illnesses of despair. One way out is to recognize that racism is permanent and won’t change, but you can still fight.

c. The goal is defiance without the expectation that the white oppressors will be toppled. (i.e. Mrs. MacDonald using courage and determination as a weapon to harass white folks)

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