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What's Wrong with Critical Race Theory?: Reopening the Case for Middle Class Values

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What's Wrong with Critical Race Theory?: Reopening the Case for Middle Class Values Cornell Journal of Law and Public Policy Volume 7 Article 1 Issue 3 Spring 1998 What’s Wrong with Critical Race Theory: Reopening the Case for Middle Class Values Daniel Subotnik Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Subotnik, Daniel (1998) "What’s Wrong with Critical Race Theory: Reopening the Case for Middle Class Values," Cornell Journal of Law and Public Policy: Vol. 7: Iss. 3, Article 1. Available at: http://scholarship.law.cornell.edu/cjlpp/vol7/iss3/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. WHAT'S WRONG WITH CRITICAL RACE THEORY?: REOPENING THE CASE FOR MIDDLE CLASS VALUES Daniel Subotnikt One of the subtlest challenges we face . is how to relegitimate the national discussion of racial, ethnic and gender tensions so that we can get past the Catch-22 in which merely talking about it is considered an act of war, in which not talking about it is complete capitula- tion to the status quo .... 1 If engagement is the first step in healing, then the second is pure unadulterated struggle.... We will never achieve racial healing if we do not confront one another, take risks ... say all the things we are not supposed to say in mixed company .... 2 INTRODUCTION Scarcely fifteen years old, Critical Race Theory ("CRT") has gener- ated a passion among its adherents, mostly minority academics, that has 3 already fueled at least a dozen books, probably 250 law review articles and a half-dozen conferences. And though the academy, along with the country, has moved somewhat to the right in recent years, this shift has t Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. Special thanks to Tracy Bach, Lloyd Cohen, Nancy Clifford, Ruth Ann Crowley, Larry Fuchsberg, Gerard Gian- nattasio, Hon. Richard Posner, Henry Ramer, Terry Scheiner, Rena Seplowitz and Rose R. Subotnik. Thanks also to Bill Carmel, Dan Derby, Deborah Hecht, Eileen Kaufman, Richard Klein, Christine Lindwall, Jeffrey Morris, Tom Schweitzer, Jill Selden (Touro Librarian) and Rochelle Silfen. Thanks, finally, to Dean Howard Glickstein for summer support and to those who prefer to remain anonymous. 1 PATucIA Wn.LiAMs, THE RoOSTER's EOG: ON THE PERSISTENCE OF PREuDICE 40 (1995) [hereinafter RoosTER] (Williams is Professor of Law at Columbia University School of Law.). 2 HARLON DALTON, RAciAL HEALING 4, 97 (1995) (Dalton is Professor of Law at Yale Law School). 3 See Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliog- raphy, 79 VA. L. REv. 461 (1993). 682 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 7:681 neither shaken the faith of CRT's advocates ("CRATs" 4) nor diminished 5 its drawing power. If anything, the movement seems stronger than ever. Its successes notwithstanding, in one important respect CRT has not yet been taken seriously.6 Over the course of the last eight years, the period of its greatest flowering, CRATs have mounted a relentless attack upon mainstream institutions. But while their charges have elicited an occasional response,7 there has been, until very recently, almost no broad-based evaluation of CRT during the 1990s from outside the move- ment.8 Are CRATs right? To the extent that they are, their message needs to be heard rather than evaded. To the extent not, CRATs need to be challenged. A systematic and comprehensive public review of CRT is overdue. This article-by an author unwedded to both traditional and Postmodernist legal scholarship 9-is offered as a contribution to such a review. 10 What (briefly) is CRT and where did it come from? CRT, reports Derrick Bell, one of the movement's two founders, embraces "an experi- 4 I use this acronym to distinguish race theorists from CRITs. See infra note 17. 5 See Robert Hayman, Jr., The Color of Tradition: Critical Race Theory and Postmodern ConstitutionalTraditionalism, 30 HARv. C.R.-C.L. L. REv. 57, 59 (1995). 6 See Martha Minow, Beyond Universality, 1989 U. CHi. LEGAL F. 115-16 ("To be taken seriously in the business of law and legal scholarship means becoming the subject of sustained criticism.") (If such criticism is not forthcoming, those new to the field will tend to assume it is flawed or marginal.). 7 See, e.g., Lloyd Cohen, A Different Black Voice in Legal Scholarship, 37 N.Y.L. SCH. L. REv. 301 (1992) (offering an incisive and well-written early critique); Dennis Litowitz, Some Critical Thoughts on CriticalRace Theory, 72 NOTRE DAME L. REv. 503 (1997) (This is a no less useful, if less acidic, current essay based in part on a new anthology of CRT writings.). 8 See Eleanor Brown, Note, The Tower of Babel: Bridging the Divide benveen Critical Race Theory and "Mainstream" Civil Rights Scholarship, 105 YALE L.J. 513, 515 (1995): []t is striking that despite the existence of critical race theory for nearly a decade, the response to it has generally been a conversation among those who identify them- selves as other critical race theorists. There simply has not been the sustained self- examination by traditional civil rights scholars that should result from the powerful critiques that critical race theory has posed to the fundamental tenets of the academy. Id.; but see DANIEL FARBER & SUZANNA SHmRY, BEYOND ALL REASON (1997) (representing an important compilation of narrowly focused articles previously written by one or both of the authors, together with some integrative and updated commentary). 9 See infra notes 24, 63, 130 and accompanying text. See, e.g., Dan Subotnik, "Sue Me, Sue Me, What Can You Do Me? I Love You": A Disquisitionon Law, Sex and Talk, 47 FLA. L. REv. 311 (1995); Dan Subotnik, Wisdom or Widgets: Whither the Academic Enterprise?, 4 THOUGHT & ACrION 67 (1988). 10 See Randall L. Kennedy, Racial Critiques of Academia, 102 HARv. L. Rev. 1745 (1989) (for an early systematic study). Writing before the era of Patricia Williams, Kennedy focused his attention on such then-fashionable issues (raised by Bell, Delgado and Matsuda) as whether blackness was a credential for a law faculty position or clerkship, whether blacks spoke with a "special voice," and whether minority scholarship was being ignored. Id. at 1747. At the same time Kennedy foresaw many of the larger problems that CRT style and method would create. See id. at 1760. But see Scott Brewer, Choosing Sides in the Racial Critiques Debate, 103 HARV. L. REv. 1844, 1845-47 (1990) (severely criticizing Kennedy). 1998] REOPENING THE CASE FOR MIDDLE CLASS VALUES 683 entially grounded, oppositionally expressed, and transformatively aspira- tional concern with race and other socially constructed hierarchies."" Writes Richard Delgado, the other progenitor: "Virtually all of Critical Race thought is marked by deep discontent with liberalism, a system of civil rights litigation and activism, faith in the legal system, and hope for progress .... ,"12 The reader is asked to recall these characterizations, because the way in which CRATs experience race, the manner in which they convey this experience, and the likelihood and nature of the change that they anticipate will receive considerable scrutiny here. As for the history of CRT, Richard Delgado will be our guide. When he took his first faculty position in the early 1970s, Delgado tells us, a white male elite dominated civil rights discourse in our law schools.' 3 These "giants in the field," including some who were "strongly supportive of minority rights," published in the major law re- views and regularly cited one another's works in their efforts to build a civil rights discipline. 14 A few black academics were around, some of whom were writing in this area, but little, if any, effort was made to welcome them into the conversation. 15 Bell and Delgado, however, needed no invitation. Fervently arguing at the turn of the decade that whites did not-and probably could not-adequately represent minori- ties in these discussions, they helped crush the white civil rights cartel 16 and encouraged a host of minority academics to enter the field. 11 Derrick Bell, Who's Afraid of Critical Race Theory, 1995 U. ILL. L. REv. 893, 906 (1995). 12 Richard Delgado, Critique of Liberalism, in CRmICAL RACE THEORY: THE CurrNG EDGE 1 (Richard Delgado ed. 1995) [hereinafter CarrlcAL RACE THEORY I]. Mari Matsuda, Charles Lawrence I,Richard Delgado, and Kimberl6 Crenshaw have helped fill in the radical picture of race in America. Critical race theory recognizes that racism is endemic to American life.... [W]e ask how . .traditional interests and values . federalism, privacy[, and] property interests... [s]erve as vessels of racial subordination.... Critical race theory ex- presses skepticism toward dominant legal claims of neutrality, objectivity, color blindedness, and meritocracy. These claims are central to an ideology of equal op- portunity that... tells an ahistorical, abstracted story of racial inequality as a series of randomly occurring, intentional, and individualized acts.... Critical race theory insists on recognition of the experiential knowledge of people of color.... [For this purpose we use] personal histories, parables, chronicles, dreams, stories, poetry, fic- tion and revisionist histories.... MATStDA Er AL., WORDS THAT WOUND 6 (1994). 13 Richard Delgado, The ImperialScholar: Reflections on a Review of Civil Rights Liter- ature, 132 U. PA. L. REV. 561, 562-63 (1984); see Derrick Bell, Serving Two Masters: Inte- gration Ideals and Client Interests in School Desegregation Cases, 85 YAt L.J. 470 (1976).
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