Toxic Diversity: Race, Gender, and Law Talk in America

Toxic Diversity Toxic Diversity Race, Gender, and Law Talk in America Dan Subotnik a NEW YORK UNIVERSITY PRESS New York and London new york university press New York and London www.nyupress.org © 2005 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Subotnik, Dan. Toxic diversity : race, gender, and law talk in America / Dan Subotnik. p. cm. Includes bibliographical references and index. ISBN 0-8147-4000-6 (cloth : alk. paper) 1. Race discrimination—Law and legislation—United States. 2. Sex and law—United States. 3. Critical legal studies—United States. 4. United States—Race relations—Philosophy. I. Title. KF4755.S23 2005 342.7308'73—dc22 2005001781 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 987654321 To Mayer Freed Mandel Hall Charles Kleinhaus Rose Rosengard Subotnik Who made it possible, and To L. Summers and A. Gold Who made it important Qu’est-ce que je dois écrire, Maman? Contents Preface: Doubt Everything ix part i The Signifying Monkey 1Learning to Think about Race and Gender 3 2 Smelling the Sewers but Not the Flowers 16 3 The Critical Race Theory Show 49 4 Race, Gender, Jokes, Thinking, and Feeling 70 5 The Unbearable Burden of Being Black 86 6Pink and Blue 109 part ii The Vagina Monologues 7 Chicken Little Goes to Law School 129 8 The Tall Tales of Women Teachers 146 9 Unwed Motherhood and Apple Pie 165 part iii Black and Blue 10 A Casino Society 185 11 Crime Stories 212 vii viii | Contents 12 Conclusion: Eyes on the Prize 244 Afterword: Final Exam 260 Appendix I: Student Faculty Evaluation 263 Appendix II: Student Questionnaire 266 Appendix III: Christine Farley’s Study 268 Notes 269 Bibliography 303 Name Index 323 Subject Index 331 About the Author 335 Preface Doubt Everything “[I]n most things my philosophy is that of doubt,”1 Cicero wrote more than two thousand years ago, and, for much of the time since, doubt has enjoyed a position of honor at the philosopher’s table. For Jacob Bronowski, a distinguished scientist in our own time, academic work is an adventure in doubting: “It is important that students bring a certain ragamuffin, barefoot irreverence to their studies; they are not here to worship what is known, but to question it.”2 Why should we face our world with skepticism? Because exercising doubt offers the best evidence available that we are alive? Indeed, many scholars understand Descartes’s “Cogito ergo sum” as “I doubt therefore I am.”3 So as not to be misled by language that is too unrefined to convey the complexity of a speaker’s or writer’s thoughts? Because authors may not withstand the temptation to conceal the truth in order to ingratiate themselves with intended audiences? Because there may be no other anti- dote to the the vanity of authors when self-interest overwhelms their an- alytical skills? Finally, is foundational skepticism necessary because authors tend to overstate their positions out of terror that for all the inten- sity of effort, they will be found to be bores? All of the above, I suggest—and more. Asked for his favorite epigram, Karl Marx responded, “de omnibus disputandum,” i.e., “doubt everything.”4 We must approach the world skeptically, Marx suggests, because, in ways that are often extremely difficult to detect, all cultural phe- nomena—texts no less than anything else—are the conscious or uncon- scious products of power relationships. This view has been so highly developed in our own time by French thinker Michel Foucault—with spe- cific regard to language—that it is now next to impossible for a reader to ignore the relationship between power and culture. ix x|Preface Doubt Everyone but the Doubters Which brings me to the central questions of this book: Are contemporary gender and race texts too quick to cast suspicion on everything that white males do and say, while refusing to subject women and minorities to sim- ilar scrutiny? If so, does such selective skepticism warrant a skeptical reading of its own—especially at a time when gender and race issues play such a large role in American culture and politics? Assuming “yes” as to the first question at this point, I begin a response to the second. One could argue that Marxist and Foucauldian skepticism are not necessary when interpreting the work of race and gender critics on the premise that, being minorities and women, they have no apprecia- ble power to exercise. Even accepting the premise, however, the conclusion does not follow. To open the discussion, I call on a leading feminist scholar and America’s most prominent student of discourse. Having eavesdropped on hundreds, if not thousands, of conversations, best-sell- ing author Deborah Tannen (You Just Don’t Understand: Women and Men in Conversation) holds that conversation often has a subtle purpose that goes unrecognized and that, if we are to learn to get along with one another, that other purpose needs to be understood. To put it bluntly, men engage in discourse, according to Tannen, to establish superiority or power over their conversational partners. The implications are not hard to extract. The only way to protect oneself from being abused or played for a fool is to listen to male voices with skepticism. Is Tannen right? To probe more deeply into the matter, we need to as- sess the power of the instinct to subordinate and unsettle others. We are learning more and more about this intriguing and disturbing psychologi- cal impulse every day, and some day soon someone will immortalize him- or herself for putting the pieces together. For now, consider that we begin in early life with teasing. As we grow up we “rattle,” “jerk around,” “sig- nify,” “get over on,” “bait,” “get others’ goats,” “push others’ buttons,” “yank their chains,” “get the best of,” “jive,” “stick it to,” “roast,” “play the dozens,” “talk trash” or “s––t.” We need not invoke here Hobbes’s vision of life as “a perpetual and restless desire of power after power, which ceaseth only in death.”5 The foregoing range of expression, derived from both general American popular culture and black popular culture, suggests not only that the drive to needle others for advantage is so fundamental a part of human nature that it is not worth railing at but also that it is by no means limited to Preface |xi groups in power. One can reasonably surmise, indeed, that it is tied to the instinct to play and to release aggression and that members of “subordinate” populations “twit” even more than do those at the top, precisely because twitting is the only source of power available to them. Are men’s writings more trustworthy than their conversations? The answer, painful to admit, seems obvious. Books and articles are a part of the social conversation. As such, they are no more reliable than oral communication: whatever a male author may explicitly say, he is most likely announcing to his readers, “I am smarter than you.” Writings of black men, in this view, should elicit no less in the way of skepticism or occa- sional cynicism. All the World’s a Stage? As suggested, Tannen’s finding fifteen years ago was that the instinct to one-up others was more characteristic of males than of females. But is it not possible, even likely, that women have wrested success from men, in the intervening years, precisely by adopting men’s styles? And if this is the case, shall we not also conclude that authorship generally may be less an act of communication than of performance? That even serious writing can be a game, a show, and sometimes a con? I need to make an admission. Literary theorists—and especially race and gender critics—deserve our abiding gratitude for insisting that, no matter how scrupulously trained or well intended, writers are never neu- tral on the subjects they describe or analyze. To allow text to be properly evaluated, responsible readers today demand to know authors’ personal connections to their projects. Responsible writers must accommodate this need, however intimate or embarrassing the revelations may be and however it may affect their credibility with readers. Aware of these responsi- bilities and anxious to earn readers’ trust, I make the following disclo- sures about the origin of this book, which resulted from a series of “clicks.” I heard the first one in the late 1980s, when my school was in its for- mative years and an important issue came up: on a thirty-plus-person faculty, seven of whom were tenured—six white men, one white woman, and no minorities—how to establish a fair tenure process for future ap- plicants? On the theory that, lacking a critical awareness of their own power, white men could not understand the work of women and persons xii | Preface of color, the faculty voted overwhelmingly to include one untenured woman on the tenure committee to “represent the interests” of women and one untenured person of color to “represent the interests” of minorities. Untenured faculty are rarely, if ever, allowed to make decisions about permanent faculty because they have not yet proved to be worthy themselves of such positions. How then could the new rule be understood? Was it largely a power play pushed through by my school’s women and minorities because they could? Not a word of argument was offered to support a theory that unbridgeable intellectual gaps separated men and women, whites and minorities.

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