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Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction

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Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction Mari J. Matsudat I. INTRODUCTION Every person who reads this Article has an accent. Your accent carries the story of who you are-who first held you and talked to you when you were a child, where you have lived, your age, the schools you attended, the languag- es you know, your ethnicity, whom you admire, your loyalties, your profession, your class position: traces of your life and identity are woven into your pronun- ciation, your phrasing, your choice of words. Your self is inseparable from your accent.' Someone who tells you they don't like the way you speak is quite likely telling you that they don't like you. Every person has an accent-even those who do not communicate with voice.2 The deaf have an accent in the way they use American Sign Language. An observer familiar with deaf culture can identify Black signing, upper-class signing, "hearie" signing, regional signing, teenage signing, "heavy" signing, Copyright * 1991 by Mar J. Matsuda. t Associate Professor of Law, University of Hawaii William S. Richardson School of Law. Professor Matsuda served as volunteer appellate counsel in Fragantev. City and County of Honolulu, discussed at Il.A, arguing the case before the United States Court of Appeals for the Ninth Circuit. The author thanks Stanford Law School, UCLA School of Law, The UCLA Center for Asian-American Studies, the University of Texas Law School, Harvard Law School Saturday School, and the University of Houston School of Law, where initial versions of this paper were presented. Expert research assistance was provided by Clarel Cyriaque, Lovely Dhillon, Lila Gardner, Sue-Ann Gregory, Lillie Hsu, Jenny Lee, and Lisa Lim. Special thanks to Esther Arinaga, Barbara Babcock, John Calmore, Ed Chen, Kimberl6 Crenshaw, Manuel Fragante, Thomas Grey, William Hoshijo, Neil Gotanda, Charles Lawrence, Don and Kimi Matsuda, Dale Minami, and Charlene Sato for reading and commenting on earlier drafts. 1. Indeed, an individual's accent is so much a marker of the self that experts in forensic sociolinguistics are used to identify speakers in legal cases in which the identity of the speaker is at issue. See Milroy, Sociolinguistic Methodology and the Identflcation of Speakers' Voices in Legal Proceedings,in APPLIED SOCIOutoNGuSTrCS 51-72 (P. Trudgill ed. 1984) (discussing use of sociolinguists as experts in determining whether persons accused of crimes such as blackmail, for example, are actually ones who made threatening phone calls). 2. I choose to use "they, those, and their" to refer to both individuals and groups in a gender-neutral fashion. 1329 1330 The Yale Law Journal [Vol. 100: 1329 and signing associated with certain residential schools.3 Every person has an accent. Yet, in ordinary usage, we say a person "has an accent" to mark difference from some unstated norm of non-accent, as though only some foreign few have accents. This Article asks two questions, one small and one large. The small ques- tion involves the application of antidiscrimination law to accent-bias. The larger question, implicated by the smaller doctrinal one, is of what kind of world we want to live in, with what ranges of difference, under the constitutionally constituted experiment in pluralism we call democracy. Posing these questions, and suggesting answers to them, will have a quaintly modernist bent to some readers. Posing questions presumes their answerability in universal terms that link reader and writer. It presumes that problems are solvable, that conversations about the right legal and ethical results in given cases are possible, and that application of reason to experience can yield ever closer approximations of truth and justice. In its modernist tendencies, this Article will sound like many of The Yale Law Journal articles published throughout the past one hundred years. In its method and conclusions, however, this Article will sound deeply discordant to the ghosts of YIJ boards past. It is situated inevitably in the postmodern world that is the law school world of the coming century. It draws from the work of Critical Legal Studies, feminist jurisprudence, and Critical Race Theory. It looks for the coercive and hidden assumptions embedded in law, and values the multiple consciousness of the disempowered.4 It does several things at once, often seemingly in contradiction. It suggests revolution- ary change, while operating within the doctrinal and ideological world com- manded by the rule of law. The African American poet Gwendolyn Brooks once wrote: I had to kick their law into their teeth in order to save them, However, I have heard that sometimes you have to deal Devilishly with drowning men in order to swim them to shore.5 3. Hall, Train-Gone-Sory: The Etiquette of Social Conversations in American Sign Language, in AMERICAN DEAF CULTURE 91 (S. Wilcox ed. 1989) (discussing variations of sign language in deaf community). For additional discussion of deaf culture, history, and language, see also 0. SACKS, SEEING VoIcEs: A JOURNEY INTO THE WORLD OF THE DEAF (1989). 4. See Matsuda, When the FirstQuail Calls: Multiple Consciousness as JurisprudentialMethod, 11 wOMEN's RTs. L. REP. 7(1989) (urging deliberate choice to view world from perspective of the oppressed). 5. G. BROOKS, Negro Hero, in BLACKS 48 (1945). 1991] Voices of America 1331 The Chicano poet Alurista once wrote: we must bind his paws and file his fangs he may not kill not us not himself' The drowning man, the fanged monster, of these poems is our country. The poets, at once separate, at once tied to the nation within whose boundaries they write, speak with the characteristic dualism of writers of color. They speak of saving the dominant ones in the process of seeking self-liberation. As willing as they are to wage a bitter fight, so are they willing to value and save the best parts of their enemy-parts that are inseparable from themselves. That a fan of these angry poems is asked to write for The Yale Law Journalspeaks to the interesting lives we lead as legal theorists standing along our century's edge. In the pages that follow, I hope to.speak with dualism-from and against the traditions of legal analysis-as I confront the problem of accent discrimination. This Article will look familiar to readers immersed in the literature of Critical Race Theory, and unfamiliar to readers accustomed to traditional academic writing.7 It will use personal experience in addition to cases and statutes. It will express emotion and desire alongside logic and analysis. It will borrow from a wide range of disciplines and analytical traditions. This eclectic and critical method will reflect the influence of postmodernism. It will reflect as well this writer's instrumental goals. There is no claim to neutrality or objectivity made in this piece. I do claim, however, that my choice of position and method is made from within a legitimate scholarly tradition. I strive throughout to meet the standards of rigorous inquiry and concern for justice 6. J. BRUCE-NOVOA, CHIcANo AUTHORS: INQUIRY BY INTERVIEW 18 (1980) (quoting Hombre Ciego, in ALURISTA, FLORICANTO EN AZrLAI% (1971)). 7. "Critical Race Theory," as I use it, refers to the work of progressive legal scholars of color who are attempting to develop a jurisprudence that accounts for the role of racism in American law and that works toward the elimination of racism as part of a larger goal of eliminating all forms of subordination. Works I would include in this movement are, inter alia, D. BELL, AND WE ARE NOT SAVED (1987); R. WILLIAMs, THE AMERIcAN INDIAN INWESTERN LEGAL THOUGHT (1990); Austin, Sapphire Bound!, 1989 WIS. L. REV. 539; Calmore, Exploring the Significance ofRace and Class in Representing the Black Poor, 61 OR. L. REv. 201 (1982); Crenshaw, Race, Reform, and Retrenchment: Transformationand Legitimation in AntidiscriminationLaw, 101 HARV. L. REV. 1331 (1988); Dalton, AIDS in Blackface, 1989 DAEDALUS 205; Delgado, When a Story Is Just a Story: Does Voice Really Matter,76 VA. L. REV. 95 (1990); Grilo, The Mediation Alternative: Process Dangersfor Women, 100 YALE LJ. (forthcoming 1991); Lawrence, The Id. the Ego, andEqual Protection:Reckoning With UnconsciousRacism, 39 STAN. L. REV. 317 (1987); l6pez, The Work We Know So Little About, 42 STAN. L. REV. 1 (1989); Matsuda, PublicResponse to Racist Speech: Considering the Victim's Story, 87 MicH. L. REV. 2320 (1989); Torres, Local Knowledge, Local Color: Critical Legal Studies and The Law of Race Relations, 25 SAN DIEGO L. REV. 1043 (1988); Williams, Alchemical Notes: ReconstructingIdeals From DeconstructedRights,22 HARv. C.R.-C.L. L. REv. 401 (1987). 1332 The Yale Law Journal [Vol. 100: 1329 that mark the new critical scholarship I strive as well, in my use of new methods, to tell the reader exactly what I am doing, so that those unfamiliar with Critical Race Theory will nonetheless be able to follow my arguments. This Article opens with stories of some of the accents that gave rise to the existing judicial decisions. The influence of the "turn to narrative"--the sugges- tion that human beings understand and form their worlds through stories-is evident here.' These narratives create a doctrinal puzzle, conceptualized in Part III. The puzzle is this: Courts recognize that discrimination against accent can function as the equivalent of prohibited national origin discrimination. The fact that communication is an important element of job performance, however, tends to trump this prohibition against discrimination, such that it is impossible to explain when or why plaintiffs will ever win in accent cases. In fact, they almost never do. Much of this section will sound like a positivist's plea for logic.
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