Gotanda and Crenshaw

HEADLINE: Critical Race Theory: The Key Writings That Formed the Movement

BYLINE: JUDITH A. HAGLEY; Judith A. Hagley is a lawyer and writer in New York.

Edited by Kimberle Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas. The New Press, New York, N.Y. 494 pages. $ 60 (hardcover), $ 30 (paperback).

In his recent book, Professional Correctness, Stanley Fish warns fellow academics not to cast their nets of influence into the public sphere. Fish counsels: "If you want to send a message that will be heard beyond the academy, get out of it." A group of progressive law professors committed to the struggle against racism, most of them scholars of color, scorns this advice and rushes in where Fish fears to tread. Critical Race Theory is a compilation of their work, spanning the last two decades, known as critical race theory (CRT). This collection of 27 articles, all previously published in leading law reviews, recounts both the genesis and the main themes of CRT. In addition to articles by each of the editors, Critical Race Theory includes pieces by Derrick Bell, Richard Delgado, Alan Freeman, Lani Guinier, Cheryl Harris, Duncan Kennedy, Charles Lawrence, Mari Matsuda and Patricia Williams.

Critical Race Theory covers a myriad of issues, including critiques of conventional civil rights jurisprudence, essays comparing and contrasting CRT with both critical legal studies and postmodernism, as well as essays investigating the intersection of race and gender. Although the authors included in the book are not ideologically cohesive, they are motivated by similar concerns. These scholars are disillusioned with the liberal ideology that embraces formal equity but does not address the continuing economic and material inequality between black and white America.

CRT scholars reject the conception of racism as merely the "outright formal exclusion of people of color" that does not encompass the "de facto segregation of schools, workplaces and neighborhoods." Adopting an oppositional stance and a subjective voice, the authors incorporate material from sociology, psychology and literature because they believe that the world within which most legal scholars concern themselves -- that bound by the four corners of a judicial opinion -- in complete because it does not consider the actual conditions of minority groups. Determined to intervene in the ideological debate over race in America, CRT scholars are consciously political.

The Supreme Court's increasing distrust of race-conscious remedies is grounded, according to CRT, in "traditional liberal racial principles." It is this mindset that CRT hopes to alter by urging a change in perspective. Alan Freeman describes how racial discrimination can be understood from either the perspective of the victim or the perspective of the perpetrator. The former -- a viewpoint referred to by Mari Matsuda as "as looking to the bottom" -- focuses on the actual social conditions of members of a "perpetual underclass." The latter, "indifferent to the condition of the victim," only takes into account "what particular perpetrators have done or are doing to some victims." Freeman argues that our antidiscrimination law is "hopelessly embedded in the perpetrator perspective," insisting upon proof intentional discrimination and a showing of strict causation.

CRT repudiates the present Court's view that all racial classifications cause harm, contending that this view is a fallacy of the ideology of color blindness. CRT scholars deconstruct the theory of "color blindness" to show, as Neil Gotanda argues, that the Supreme Court's use of color-blind constitutionalism actually "fosters white racial domination" by avoiding the social and historical context of racial subordination. Although many of the authors believe that race is "socially constructed" -- the concept of biological race is false -- nevertheless, they believe that "race" is real in the sense that society treats it as real. thus, their endeavor is a paradoxical one -- to create a race-conscious paradigm moored by antiessentialist roots to supplant a color-blind paradigm that has evolved from a history of race essentialism.

The color-blind paradigm, according to CRT, should be replaced by a progressive form of cultural pluralism. Viewing affirmative action as necessary to attain cultural pluralism, several of the essays confront the arguments against affirmative action. They assert that "merit" is not a neutral and impersonal category and that equating the racial categories implicit in affirmative action policies with the now-banished segregation laws ignores the historical balance of power in America. Although they consider the merits of cultural pluralism, these authors fail to address the class conflict and inter-minority group disputes that arise in the context of affirmative action.

Like its intellectual cousin, critical legal studies (CLS), CRT rejects the conventional wisdom that law is apolitical and neutral. CRT advances the CLS tenet that law, rather than being a mere instrument of society, produces and is the product of social power. Although CRT, like CLS, is committed to being "critical," its ultimate goal is to transform and redeem the law, not merely deconstruct and reject it. CRT seeks, in the words of Harlon Dalton, to develop a "positive program."

Thus, in "Racial Realism," Derrick Bell advises that "black people need reform of our civil rights strategies" and holds up the legal realists -- the group of scholars in the early part of the 20th century who challenged legal formalism -- as an example to follow. Recent Supreme Court decisions that thwart the use of affirmative action and set-aside programs, according to Bell, typify the formalist jurisprudence that the realists railed against. He encourages civil rights leaders to realize that their "commitment to racial equality merely perpetuates our disempowerment" and to "move on to a fresh, realistic approach."

Critical Race Theory is replete with "fresh," creative attempts by scholars to replace the paradigms that they critique. Anthony Cook points to the African-American church and the reconstructive theology of Dr. Martin Luther King Jr. for insight. Cheryl Harris formulates the concept of "whiteness" as property and posits that affirmative action is necessary "to delegitimate the property interest in whiteness." Lani Guinier recommends cumulative voting as an alternative to our electoral system based on territorial districting, which would render gerrymandering -- including racial gerrymandering -- unnecessary.

Neil Gotanda extracts from First Amendment religion jurisprudence an alternative theory to comprehend racial difference -- the Court could promote the "free exercise" of race (thus taking race into account and allowing benign discrimination through the rubric of accommodation) yet prevent the "establishment" of any one race (thus prohibiting invidious, exclusionary and subordinating practices).

Charles Lawrence, attacking the legal doctrine of discriminatory intent in which a law is either "intentionally and unconstitutionally or unintentionally and constitutionally discriminatory," uses principles from psychology to argue that this is a "false dichotomy" because it "ignores much of what we understand about how the human mind works" and disregards "the profound effect that the history of American race relations has had on the individual and collective unconscious." He argues that "judicial exploration of the cultural meaning of governmental actions with racially discriminatory impact is the best was to discover the unconscious racism of government actors."

CRT writing has been criticized for its frequent use of narrative, storytelling and the subjective voice. However, as Lawrence explains, CRT scholars use these devices because of their power to "build bridges of validation, understanding and empathy." This is not to say that the essays eschew rigorous analysis -- they are written by lawyers, after all, who rely on logic and extensive footnotes to advance an argument. Nevertheless, they are advocating what advertising executives have known for years -- a picture is worth a thousand words, or in this case, a thousand law review articles.

In addition to questioning its style, Richard Epstein censures CRT for being too "dismissive of the status quo." Yet, since there is an abundance of writing defending the status quo, his complaint rings hollow. By questioning completely the status quo, CRT clears a space between itself and the mainstream in which, hopefully, a dialogue can take place. To the extent that, as some critics complain, CRT scholars assert immunity from judgment and suggest that white male academics should not write on racial issues, those scholars defeat their own stated objective to increase the range of public discourse. In this context, it is interesting to note a glaring absence -- Critical Race Theory does not include any of the articles by Matsuda, Lawrence or Delgado on racist hate-speech, the legal theory that has been blamed for fanning the "political correctness" frenzy.

Critics probably find CRT disruptive because law is a conservative enterprise -- legal change is generally glacially slow. In his foreword to Critical Race Theory, Cornel West explains that CRT is "an intellectual movement that is both particular to our postmodern (and conservative) times and part of a long tradition of human resistance and liberation." Accordingly, the mere fact that the authors propound change should not make them suspect. At various points in our history, it was taboo to suggest that blacks be free, women work, or the poor vote. The beauty of our system is that nothing, really, is sacrosanct -- things are allowed to change and improve. Our Constitution was framed by broad strokes; our politicians leave office; our judges reverse themselves. Though much of it is scathing, Critical Race Theory is, as West suggests, "a gasp of emanicipatory hope that law can serve liberation rather than domination."

Although Critical Race Theory is an ideal classroom tool for a seminar on race issues, it is much more than that -- it is a "must read" for anyone who wants to talk seriously about race. You may not agree with all of its conclusions, but you cannot miss its creativity and courage. Bringing the real world into the ivory tower of the legal academy -- like tracking mud into a sterile house -- is a dangerous task.

SECTION: Calendar; Part F; Page 3; Column 4; Entertainment Desk

HEADLINE: COUNTERPUNCH: REVIEWING SELF IN AN ERA OF DIVERSITY

BYLINE: By PHILIP GOTANDA and NEIL GOTANDA, Philip Gotanda is the author of The Wash. His brother Neil Gotanda writes on race and constitutional law.

BODY:

Southern California is beginning to enjoy being the center of American multiculturalism, but, for all of us, including theater critics, each encounter with cultural diversity may require more self-examination than we at first expected.

That challenge may explain why an intelligent, well-intentioned theater reviewer can end up sounding like a frustrated movie critic. In his review of "The Wash" at the Mark Taper Forum (Jan. 19), Don Shirley refers to the film version seven times, including four comments beginning "in the movie." He even complains about added lines in a Nobu Matsumoto speech that were not present "in the movie."

"The Wash" was performed as a play years before its adaptation as a movie. Since this production was well-reviewed in New York and has been well received by audiences at the Taper, Shirley's preoccupation with the film is extremely puzzling.

We think the answer lies in Shirley's central criticism, that the story is "so 'universal' that it never becomes . . . distinctive." What does he mean by "distinctive?" Shirley never makes an explicit comparison, but he seems to have been impressed by the cinema version's bright, visual signals -- a wedding in a Buddhist church or Japanese businessmen in a karaoke bar. These are easy-to-follow markers of Japanese-American culture.

Unlike the movie, the play does not contain exotic and foreign-looking visual cues. Did Shirley conclude, then, that there was nothing Japanese American in the play? His review reflects a dismissal of anything that doesn't fit into his apparent conception of Japanese Americans. Throughout the play, the very fabric of Nobu and Masi's lives is Japanese American, woven from the complex of common American experiences and our distinctive ethnic heritage.

By dismissing Nobu as "cranky," Shirley's doesn't see that Nobu is trapped within his self-defeating efforts to maintain dignity. He also fails to see that the inhabitants of Kiyoko's restaurant support him, yet prevent him from confronting his changing world until it is too late.

Shirley does, however, catch references to the most obvious Japanese-American experience -- the relocation camps -- which he dismisses as "too little, too late."

In the tradition of the restaurant critic who visits a sushi bar and is confident of his understanding of Japanese culture, Shirley seems to feel he understands the camps. His review suggests that if a Japanese-American author mentions the relocation camps, that reference is to be understood as a straight-line explanation for everything Japanese American. In contrast, "The Wash" includes the camps as part of a complex heritage within which Nobu is trapped and from which Masi seeks to escape.

Shirley's failure to find a quick and easy dose of visual "foreign culture" at the Taper suggests a perspective dismissive of elements outside his own experience. One hopes that he and other critics and theatergoers who may be part of the dominant culture would look beyond it to re-examine the complexity of the American experience.

In contrast, a multicultural perspective can never be dismissive. Authors who pursue the task of interpreting America's multicultural diversity are open to criticism or praise. But there is an obligation not to presume that one already understands. We should seek to see art and life not only through our own eyes but also from the perspective of the "other."

Keep in mind that when we criticize a perspective of mainstream cultural dominance, we are not making a broad racial accusation. We are instead describing what seems like a lack of will to develop sensitivity and understanding.

When playwright and theater have joined together to present a viewpoint outside the dominant or traditional, then the critic, as well as the audience, faces new challenges. "The Wash" is not the first such effort in Los Angeles. There will be many more in the future.

As playwrights of color collaborate with theaters like the Taper in developing a new and renewed American theater, we hope that critics also will see themselves under an obligation to work toward understanding difference and diversity.