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Race and the Law

Race Liberalism and the Deradicalization of Racial Reform

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In the era that followed the formal collapse of white supremacy, efforts to sustain and broaden reformist agendas against the denouement of social justice movements exposed a series of discordant debates on the Left. While many such conflicts surfaced throughout the social order, some of these debates were staged in elite spaces like Harvard Law School. The Harvard Law School boycott of 1982 reflected a rupture among race-reform advocates between what I call “race liberalism,” an ideology that ultimately embodies a “colorblind” model of racial justice that seeks to eliminate “discrimination,” and a “critical race” discourse focused on the distribution of racial power, a perspective requiring the very race consciousness that race liberals saw as the evil that reform aimed to transcend. In the 1980s, the rhetorical battles between these two camps played out in a number of contexts, including, for example, debates about race-conscious affirmative action policies in elite institutions.

The temporal and institutional setting of the battles exposed how knowledge production in legal education was an arena of racial contestation not unlike the lunch counters and ballot boxes that confronted civil rights advocates in the decades before. When students of color demanded a say in how race and law would be conceptualized as a field of inquiry, they challenged the deepest pretense of liberal sensibility — that universities themselves are apolitical arbiters of neutral knowledge rather than participants in the struggle over how social power is exercised.

Harvard Law School was a generative site of struggle over the norms and content of elite legal education, particularly in shaping the contours of liberal-radical conflict about law and social transformation. The liberal project of enhancing social mobility and democratic participation through rationality and rights was a foundational commitment of the Civil Rights Establishment (CRE)1×1. When referring to the CRE, I mean to include organizations and civil rights leaders who embraced an integrationist ideal, that is, a commitment to staying the course of civil rights reform by bringing social practices throughout American society into alignment with the nation’s ideals. The legal arm of the CRE included organizations, judges, and other notables whose prestige was built on their ability to wrest important victories from the courts, wielding the law as both sword and shield in the fight against racial injustice. . The legal face of race liberalism included not only the network of faculty, administrators, judges, and graduates who moved in concert with this commitment, but also the lingua franca of liberal institutions.

Harvard was also a central location in the map of radical thinking about law. Key figures in the Critical Legal Studies (CLS) movement were prominent members of the law school’s faculty.2×2. Some of the Harvard faculty who were among the key figures in the CLS movement at the time were Duncan Kennedy, Roberto Unger, Morton Horwitz, Clare Dalton, David Trubek, and Daniel Tarullo. See Jennifer A. Kingston, Harvard Tenure Battle Puts “Critical Legal Studies” on Trial, N.Y. Times (Aug. 30, 1987), http://www.nytimes.com/1987/08/30/weekinreview/harvard-tenure-battle-puts-critical-legal-studies-on-trial.html [https://perma.cc/6H6P-7ZRU]; Calvin Trillin, Harvard Law, New Yorker, Mar. 26, 1984, at 56. During its heyday at Harvard, CLS’s critiques of law and its relation to social hierarchy coincided with a period of heightened student activism related to faculty hiring, curricular development, and the interface between legal liberalism and Critical Race Theory. The influence of these communities of thought in shaping an alternative view of racial power was not a simple matter of students’ selective incorporation of legal liberalism and CLS. Instead, the unfolding conflict became an interpretive template from which to map the ideological investments of a race project that wasn’t critical, utilizing the critical tools of a radical project that was only beginning to interrogate race. The battle over affirmative action at Harvard became a social text that galvanized student critics into articulating an alternative view of racial power, one in which notions of merit and institutional settlement were seen as mere rationalizations for the refusal to interrogate or interrupt the core commitments of elite legal education.3×3. See Kimberlé Williams Crenshaw, Twenty Years of Critical Race Theory: Looking Back to Move Forward, 43 Conn. L. Rev. 1253, 1275 (2011); Gary Peller, Race Consciousness, 1990 Duke L.J. 758, 764–65, 772–73, 777.

These dynamics unfolded into projects that integrated insights about the relationship between knowledge and racial power that had surfaced in other sites across the university into critical discourses about law. Critical Race Theory and intersectional feminism/antiracism emerged from this interface as a product of ideological tension between race liberals and their left-leaning critics.4×4. See generally Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991). It took shape within the simulta-neous encounters between faculty and students who were struggling to articulate how radical thinking about law and about race could cross-pollinate and find expression as an intellectual and political project.

Part I of this Essay explores liberal responses to the social disruptions that shook the country in the 1960s and 1970s, which reflected a belief that law could facilitate orderly and meaningful reform. For race liberals in particular, the integration of bodies that had been historically underrepresented throughout the nation’s elite institutions was a central pillar of post-segregation society. As discussed in Part II, while this response translated into the integration of nonwhite faculty into the elite ranks of legal education, the most committed race liberals maintained their faith in the ideals of a colorblind meritocracy. Although race liberals would occasionally support race-conscious departures from the colorblind norm for select integrative purposes, their idealization of merit as colorblind and “race neutral” set the stage for a nationally publicized eruption over faculty hiring and curricular development. One site of this conflict was the controversy over the Alternative Course at Harvard Law School.5×5. See Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1806–07 (1989) (characterizing race consciousness as a “deviant mode” of academic evaluation that should not be naturalized into “our conception of meritocracy,” id. at 1807). But see generally Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705 (labeling Randall Kennedy’s position “colorblind meritocratic fundamentalism,” id. at 707, and proposing an argument against “a sharp boundary between meritocratic decision and race-based decision,” id. at 711).

 

The full text of this Essay can be found by clicking the PDF link below.


* Professor of Law, Columbia Law School and University of California, Los Angeles, School of Law. I am grateful to the many colleagues who read multiple versions of this Article and to participants at the Social Justice Writers Retreat: Mary Frances Berry, Gary Peller, Duncan Kennedy, Devon Carbado, Luke Harris, and Chris Lehmann. Research assistance was provid-ed by Cynthia Luo, Elena Rodriguez, Marcus Tippens, and Teddy Fenster. Special thanks goes to Michael Kramer who went far beyond the call of duty.