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February 5, 2004

Two law professors discuss hierarchy of race

Pitt law professors Richard Delgado and Jean Stefancic

Pitt law professors Richard Delgado and Jean Stefancic

In a politically charged lecture last week, two Pitt law professors lodged a scathing attack on the U.S. legal system as it applies to race.

The two criticized weaknesses in anti-discrimination law and flaws in some proponents’ rationale behind affirmative action, as well as the inhibiting structure of court proceedings.

Richard Delgado and Jean Stefancic alternated as speakers Jan. 27, delivering the Derrick A. Bell Inaugural Lecture titled “Cultural DNA” — that is, an analysis of why the hierarchy of race persists between whites and blacks and between whites and other minorities despite, and often because of, the law.

Delgado, Derrick A. Bell fellow, is a leader of the critical race theory movement. Jean Stefancic, Derrick A. Bell scholar, is a noted legal writer. The couple joined the Pitt law faculty in May 2003 as the initial holders of the Bell posts at Pitt.

Their faculty positions are named for Derrick A. Bell, a 1957 alumnus of Pitt’s law school, who is known for resigning from his tenured faculty position at Harvard University to protest a lack of minority women faculty members.

Bell’s book “Race, Racism and American Law,” helped to inspire the critical race theory movement, of which Stefancic and Delgado are proponents.

“How does society replicate itself?” asked Stefancic, who led off the presentation. “How is it that the hierarchy of race remains almost exactly the same from year to year, decade to decade, century to century, with whites on top and people of color at the bottom?”

Despite changes in a variety of society’s sectors — a fickle stock market; urban and suburban population shifts; industries coming and going; styles and tastes changing — the disparity remains between whites and blacks “and that holds true whether you look at wages, longevity, infant mortality, school completion, family wealth or anything else.”

In categorizing cultural DNA, the professors maintain that seven systemic mechanisms have perpetuated the exploitation by whites of blacks and other minorities. (The crystallization of these mechanisms is due primarily to Bell’s scholarship, they point out.)

The seven mechanisms are: narrative destruction; formalism; diversity rationale; alternative dispute resolution; binary thinking; pitting outgroups against each other, and triumphalism.

• Narrative destruction. “Courts carve up your stories into little, unfamiliar pieces, and then quiz you to see if you really believe in each of them,” Stefancic said. “They kill your narrative, transform it into something you do not recognize. They force you to choose and defend a past that is unfamiliar to you, that is not yours. This is a great injury, and a form of systemic injustice.”

Unless a defendant’s story is aligned absolutely with convention and social power, she said, the story gets diluted or lost in the law’s structure. “The law of evidence forces you to tell a stylized version of it. No hearsay, no opinion, if you please.”

The story doesn’t even derive from the defendant’s own words. “No, you must have your lawyer pull it out of you, one fact at a time, and subject to the other side’s objections if you stray too far from the kind of story the court wants to hear,” Stefancic said. “That is what [courts] are in the business of doing, killing narratives by a process of framing, winnowing, limiting, shortening what one is allowed to say.”

• Formalism. “Race law, through most of our history, has meant discrimination law — a congeries of restrictive covenants, school assignment rules, Jim Crow laws, racist immigration statutes, alien land laws, Chinese Exclusion Acts, and anti-miscegenation laws that kept black, brown, red and yellow people down,” Delgado said.

Nor is anti-discrimination law an exception to this framework, both professors maintained, because it also narrows, regularizes and limits the pace of change while persuading society that all is well.

“By downplaying power, emotion, history, context, purpose, justice and equity, in favor of text and precedent, formalism keeps a great deal of the messiness of life out of view,” said Delgado.

Someone who is a proponent of formalism is “color- and gender-blind in thinking that reasonable man standards, which select the favored group’s perspective as the normative baseline for legal doctrine, are fair for everyone,” he added.

“By a supreme irony, prizes, most lectureships, and awards go to formalists, in the classroom, in the law reviews and in the judiciary, who obscure how things happen, narrow the spotlight of inquiry, and reframe or never ask the big questions,” Delgado said.

• Diversity rationale. This is the mechanism that papers over the 400-year history of racist oppression in favor of a cheerful, forward-looking approach to racial remedies, including affirmative action.

According to the professors, there are two justifications for affirmative action: a “remedial rationale” that requires institutions that have discriminated against minorities to restore the condition they would have enjoyed had the institution not discriminated against them, and the “diversity rationale” that permits institutions to consider race in, for example, faculty hiring and student admissions in order to achieve a diverse intellectual community.

“Universities, abetted by liberal lawyers and administrators, unerringly select the diversity rationale when conservatives challenge race conscious admissions and hiring,” Delgado said. “Not only is diversity a pallid, morally unimaginative way to approach campus integration, it suppresses stories about universities’ own racism and discrimination that would be better aired and reckoned with. The liberals’ diversity rationale kills off these stories, making them irrelevant, the province of a few hotheads bent on stirring up trouble and unwilling to let bygones be bygones.”

• Alternative dispute resolution (ADR). “The liberal counterpart of formalism in legal process, ADR treats conflict as pathology, adjusting disputants to their roles in life, and pretending that individual and class conflict are not inevitable and necessary parts of our system, which they are,” Delgado said. “Nonformal chambers like mediation, arbitration and consumer complaints panels magnify power differentiation and increase the likelihood of a judgment based on race or status.”

• Binary thinking. Most racial constructions are binary, that is, defined with reference to what is and is not white, the professors said. That dichotomy makes one group’s racial experience central, at the expense of other groups’ experience.
“In a system of anti-discrimination law that incorporates a black-white binary, a Latino gains redress only by showing that what happened to him would be actionable if he were black,” said Stefancic.

Another example is the black woman who sues a supervisor who discriminates against her, Stefancic said. The supervisor gets along with black men, with whom he likes to talk about sports. He also finds white women acceptable.

“Treated badly and denied opportunities for advancement, our black woman decides to file suit. But because of the structure of anti-discrimination law, she is likely to meet rejection,” Stefancic said.

If she sues on grounds of racial discrimination, the employer can escape liability by showing that he is not biased against all blacks, just black women.

“And if she sues for sex-based discrimination — after all, the employer discriminates against her on account of her black womanhood — she is apt to lose as well, since the employer can truthfully state that he is not biased against all women, and in fact hires lots of the white kind.”

Blacks have faced discrimination based on skin color, a history of slavery and stereotyping. “Latinos, Filipinos, Asians and Indians are racialized in some of those ways, plus many that blacks do not have to contend with, including conquest, accent discrimination, perceived foreignness, fear of engulfment, immigration status, ability to speak English; and a host of stereotypes that change over time, sometimes identical with those that society invests blacks with but, sometimes, quite different,” she said.

• Pitting outgroups against each other. “If one examines the history of minority groups in the U.S., one is struck at how one group is often gaining ground at the very time another is losing it,” Stefancic said. “Whites have affirmatively pitted one minority group against another in the struggle for opportunities and rights.”

“One of the most important features of our system of white-over-black exploitation is how white elites arrange that black gains come only when they will also advance white self-interest,” Delgado added.

Working-class whites nearly always cast their lot with elite whites instead of joining with those who are similarly exploited.

“This happens because elite whites convey to their working-class counterparts the idea that blacks covet their paltry prerogatives and that whites are better off by maintaining a sharp separation between themselves and those at the true bottom of society,” he said.

• Triumphalism. Despite misplaced self-congratulation and an “orgy of celebration” over so-called advances in racial equality, civil rights advances did not come as a result of an ethical breakthrough on the part of whites or by a progressing social morality. “Civil rights breakthroughs came down when they did because elite groups realized that Cold War appearances required them,” Stefancic said. “We were in the early stages of a Cold War against the forces of international Communism, competing for the loyalties of the uncommitted Third World, much of which was black, brown and Asian,” she said.

“America’s self-interest required a breakthrough for blacks; the Supreme Court obliged,” with its 1954 Brown v. Board of Education decision.

“But after Brown, little changed. The South went on doing what it had always done, while in the North, white families, faced with busing and integrated schools, moved to the suburbs in droves. Today, more black school children attend dominantly minority schools than did in Brown’s day,” Stefancic said.

“So there you are — seven mechanisms,” concluded Delgado. “[These are] our candidates for the components of cultural DNA, the collection of forces that keep race relations more or less the same, with minor shifts in position, from decade to decade.”

—Peter Hart


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