Taking Stock: I’d noted at the outset that my goal here was not to present CRT as an abstraction, the musings of some wingnut ideologues, but rather to “tell the story” of CRT. The way I learn and the way I prefer to present is through following the progression of intellectual history. I generally (I wish I could say always) try to confront a new ideology in a manner that will not leave me thinking, “Where in the heck did that come from?!” Accordingly, in this series my goal is to come to the supposed “tenets” of CRT without experiencing shock, or the feeling that these ideas are coming out of left field. My hope is that, in the end, we can assess them in their historical context and at least be able to say, “I disagree, but I certainly see where they were coming from.”
So, where are we in this process? In the first post I attempted to overcome some common misrepresentations of the traditional civil rights discourse. We can’t get anywhere if we don’t know the historical ideology—the actual historical ideology—that CRT both continues and contrasts in important ways. I hoped also that we might be able to recognize that some of the ideas we thought were CRT are really hundreds of years old and not uncommon. In the second post, I hoped to tell the history of how the successes of the Civil Rights Movement were ultimately stymied and, in many cases, reversed, while nevertheless appearing to have won out. This is, in fact, the dilemma that directly led to the formal creation of CRT in the late 80’s.
Next, according to Richard Delgado and Jean Stefancic, “[c]ritical race theory sprang up in the mid-1970s with the early work of Derrick Bell (an African American) and Alan Freeman (a white American)” (Critical Race Theory: The Cutting Edge, p. 2). Accordingly, we discussed the work and ideas of Dr. Derrick Bell in our last post and will cover the work of Dr. Alan Freeman in this post. Understanding the work of these two figures, along with what has gone before and one forthcoming post focusing on Kimberlé Crenshaw, I believe we will have laid a sturdy foundation for understanding CRT as a discipline.
Quickly, then, what we can expect moving forward: We will here discuss Alan Freeman. The next post will situate CRT in contrast to both the Left and the Right via Kimberlé Crenshaw. We will then recount the immediate historical events that led to the first CRT conference. Next, we will situate CRT with respect to Postmoderninsm (so important), and then, finally, we will begin a discussion of the specific “tenets” of CRT as presented by its founders and modern scholars, subjecting them to Biblical analysis.
Introduction
In the next article under consideration, “Legitimizing Racial Discrimination Through Antidiscrimination Law,” Critical Legal Studies (CLS) scholar Dr. Alan David Freeman tackles the problem of civil rights retrenchment through a broader critique of the nature and function of the law itself. According to Critics such as Freeman, the law—including the legal code, court holdings, and ongoing discourse—is not best understood as a stable and transcendent arbiter of Justice which only needs to be technically and accurately applied. It is, rather (1) “an evolving statement of acceptable public morality” that, (2) “serves largely to legitimize the existing social structure and, especially, class relationships within that structure,” and, therefore, (3) it’s “ultimate constraints are outside the legal system” (p. 1051).
In other words, the law generally reflects the changing moral commitments of a society; it does not prescribe them. It functions in society to preserve the reigning moral code, the current power structure, and the status quo by making such systems appear necessary, obvious, and ultimately just. The implication we are left with is clear: that which leads a court to decide one way or the other in a specific case is not a reflection of an internal legal necessity, but rather is constrained by the most powerful interest serving the above.
If this CLS critique, derived in large part from Legal Realism, is at all accurate, skepticism about the lasting value of the antidiscrimination law born of the civil rights era is obviously warranted. Only inasmuch as it reflected a society-wide commitment to subordinate the powerful White interests, which had governed race relations since the colonial era, could it prove to serve the long-term substantive interests of African Americans. And as discussed in our last two posts, this apparent commitment waned quickly. Freeman observed in 1978,
[A]s the law has outlawed racial discrimination, it has affirmed that Black Americans can be without jobs, have their children in all black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law. (p. 1049).
The stated purpose of Freeman’s article is to discuss a host of Supreme Court antidiscrimination opinions, together serving as “a testament to the manipulability of legal doctrine,” emphasizing “how the process of legitimation works through that manipulation of doctrine” (p. 1052). Freeman argues that, by and large, the antidiscrimination law born of the civil rights movement only served to legitimize the subordination of African American circumstances by granting the appearance of legal progress. In order for the courts to accomplish this, Freeman argues, they needed to remain both committed to what he terms the “perpetrator perspective” of antidiscrimination law, while occasionally giving a nod to the “victim perspective.” It is the tension between these two ways of understanding antidiscrimination law which characterize the long-term legitimization function of the civil rights legal order.
For our purposes, understanding this approach to law—antidiscrimination law in particular—is fundamental to understanding the development of Critical Race Theory. In fact, the phrase “Critical Race Theory” itself was an intentional spin on “Critical Legal Studies.” CRT, in many important ways, marshalled the critical techniques of CLS, putting them in service of a race-conscious critique of racial power. (We will, Lord willing, spell this out in a later post.)
The Perpetrator and Victim Perspectives
First, according to Dr. Freeman, the “victim perspective” (or “circumstance” perspective) of discrimination,
… describes those conditions of actual social existence as a member of a perpetual underclass. This perspective includes both the objective conditions of life—lack of jobs, lack of money, lack of housing—and the consciousness associated with those objective conditions—lack of choice and lack of human individuality in being forever perceived as a member of a group rather than as an individual. … The victim, or “condition,” conception of racial discrimination suggests that the problem will not be solved until the conditions associated with it have been eliminated. To remedy the condition of racial discrimination would demand affirmative efforts to change the condition. (pp. 1052-1053)
In short, the victim perspective views racial discrimination from the perspective of those who have, as a group, suffered under the subordinated conditions of historic and modern racism. In this perspective, to suffer discrimination is to suffer under objectively discriminatory conditions. And, therefore, to address discrimination requires changing the real-life circumstances of African Americans.
The perpetrator perspective, on the other hand,
… sees racial discrimination not as conditions, but as actions, or series of actions, inflicted on the victim by the perpetrator. The focus is more on what particular perpetrators have done or are doing to some victims than it is on the overall life situation of the victim class. … The remedial dimension of the perpetrator perspective, however, is negative. The task is merely to neutralize the inappropriate conduct of the perpetrator. (p. 1053)
And, of course, antidiscrimination law as we know it is “hopelessly embedded in the perpetrator perspective.” Central to American law is the concept of “violation.” This concept, translated into the arena of antidiscrimination law, gives rise to what legal scholars call the “antidiscrimination principle,” viz.,
… the prohibition of race-dependent decisions that disadvantage members of minority groups, and its principal task has been to select from the maze of human behaviors those particular practices that violate the principle, outlaw the identified practices, and neutralize their specific effects.
Further,
Antidiscrimination law has thus been ultimately indifferent to the condition of the victim; its demands are satisfied if it can be said that the “violation” has been remedied.
The perpetrator perspective presupposes a world composed of atomistic individuals whose actions are outside of and apart from the social fabric and without historical continuity. From this perspective, the law views racial discrimination not as a social phenomenon, but merely as the misguided conduct of particular actors. It is a world where, but for the conduct of these misguided ones, the system of equality of opportunity would work to provide a distribution of the good things in life without racial disparities and where deprivations that did correlate with race would be “deserved” by those deprived on grounds of insufficient “merit.” It is a world where such things as “vested rights,” “objective selection systems,” and “adventitious decisions” (all of which serve to prevent victims from experiencing any change in conditions) are matters of fate, having nothing to do with the problem of racial discrimination. (p. 1054)
(It’s worth reading that paragraph again.) The perpetrator perspective assumes a world where everything is working pretty much as it should, where merit rules and jobs, goods, services, etc. are distributed naturally, generally fairly, and in accordance with ability and desire, and “discrimination,” when it occurs, is an individual aberration from the norm.
Further, in order to prove that such discrimination has occurred under the perpetrator perspective, one must show that someone is properly at “fault.” This requires an investigation into the presumed perpetrator’s intent. There is, according to the perpetrator perspective, no “violation” of the “antidiscrimination principle” unless one can prove that the action of the supposed perpetrator was intended to disadvantage according to race. So long as it cannot be proven that the action wasn’t done for a different reason, or no reason at all, the differential racial effect of the action cannot constitute discrimination under this perspective. And not only must one prove fault, one must also demonstrate an identifiable causal chain, which “serves to distinguish from the totality of conditions that a victim perceives to be associated with discrimination those that the law will address.”
These dual requirements place on the victim the nearly impossible burden of isolating the particular conditions of discrimination produced by and mechanically linked to the behavior of an identified blameworthy perpetrator, regardless of whether other conditions of discrimination, caused by other perpetrators, would have to be remedied for the outcome of the case to make any difference at all. The causation principle makes it clear that some objective instances of discrimination are to be regarded as mere accidents, or “caused,” if at all, by the behavior of ancestral demons whose responsibility cannot follow their successors in interest over time. (p. 1056)
Thus, given the nature of the American legal conception of “violation,” the perpetrator perspective ensures from the start the ineffectiveness of antidiscrimination law to change the discriminatory social conditions suffered by African Americans. At the same time, the application of these laws serves to preserve the predominating systems, structures, and institutions of racism, while nonetheless purporting to have outlawed racial discrimination by providing a mechanism to “punish” individuals meeting the requirements of “fault” and “cause.” Outside of such identifiable perpetrators, society at large is deemed “innocent,” bearing no responsibility for African Americans’ continued subordinated circumstances, and thus ought not be called upon to bear any redistributive burdens.
Three Eras of Antidiscrimination Law
The bulk of the article is spent surveying a host of Supreme Court decisions in order to demonstrate Freeman’s claims above. In so doing, he distinguishes three eras of Supreme Court antidiscrimination jurisprudence: (1) The Era of Uncertainty, (2) The Era of Contradiction, and (3) The Era of Rationalization.
Given the limitations of the perpetrator perspective, “even illusory progress in the quest for racial justice” was impossible.
The challenge for the law, therefore, was to develop, through the usual legal techniques of verbal manipulation, ways of breaking out of the formal constraints of the perpetrator perspective while maintaining ostensible adherence to the form itself. (pp. 1056-1057)
This would be done, argues Freeman, by separating “violation” from “remedy,” allowing the perpetrator perspective to govern violation and the victim perspective to determine remediation. The trick for the Court, however, was to determine how to accomplish this while likewise maintaining that violation and remedy be coextensive, as demanded by the perpetrator perspective.
[I]t was necessary to state that tenet and violate it at the same time, no mean task even for masters of verbal gamesmanship. For a while, the remedial doctrines seemingly undermined the hegemony of the perpetrator form, threatening to replace it with a victim perspective. In the end, however, form triumphed, and the perpetrator perspective, always dominant in identifying violations, was firmly reasserted in the context of remedies as well. (p. 1057)
The three eras to be discussed represent the expansion and then contraction of this approach, moving from what appeared to be a shift toward the victim perspective, only to settle back into the perpetrator perspective, perfectly consistent with what was discussed in Part 2 of this series.
1954-1965: THE ERA OF UNCERTAINTY, OR THE JURISPRUDENCE OF VIOLATIONS
The first era Freeman considers, beginning with Brown v. Board of Education, was characterized by the Court’s identification of violation, with little attention to remedy, and general uncertainty as to the overriding legal principle governing Brown, including uncertainty as to how it ought to be applied by lower courts.
A. The Equal Protection Clause of the 14th Amendment
Freeman notes three possible meanings of the Equal Protection Clause of the 14th Amendment, the ostensible basis of the Court’s holding in Brown; viz.,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis mine)
The three possible meanings include, (1) the “means-oriented” interpretation, an entirely valueless, technical, and procedural understanding of the clause, meant only to check legislators from making irrational allocations, e.g., according to race, (2) the “fundamental right” approach, wherein the court finds within the application of the Amendment a guarantee to every individual of some constitutionally implied right, and (3) what Freeman calls “substantive equal protection,” arguably the original intent of the clause.
This meaning may be found in the tradition that regards the overwhelming goal of the Civil War amendments to be “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” (p. 1061, quoting “Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 71 (1873)”).
According to the Stauder v. West Virginia decision, 1880,
The words of the amendment … contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored,—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. (100 U.S. 303, 307-08)
This understanding is historically grounded and acknowledges the original purpose, to address the substantive circumstances of the then newly freed slaves. It was explicitly intended to protect African Americans from subordination under White Supremacy and, therefore, its application must, on substantive equal protection grounds, take into account the history of the Black/White color-line in America rather than an idealized set of technique oriented neutral legal principles.
B. Brown v. Board of Education in the Era of Uncertainty
Dr. Freeman then moves on to Brown v. Board of Education, the decision that launched the era of antidiscrimination law, to see how these various meanings of Equal Protection “may be linked to the development of antidiscrimination doctrine.” Freeman argues that there are at least five ways of looking at the decision—a decision universally considered unclear—“all of which permeate the subsequent evolution of antidiscrimination law.” They are, “the color-blind constitution theory; the equality of educational opportunity theory; the white oppression of blacks theory; the freedom of association theory; and the integrated society theory” (pp. 1064-1065). And though this section is long, I think it lays a sturdy foundation for both understanding the actual historical nature of antidiscrimination law and also seeing in practice the manipulability of the legal code to achieve the ends of powerful interests, thus subverting the progress of the Civil Rights Movement.
1. “Color-Blind Constitution”
In Part 2 of this series, we quoted Justice Harlan’s dissent to Plessy v. Ferguson, including, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Over 150 years later, this concept would become an important means of combatting formal segregation, and one might conclude, accordingly, that Brown was simply Harlan’s vision coming to fruition. But as with the equal protection clause, it too can be taken in a few different ways. Usually the color-blind law theory is presented as a purely formal, neutral, means oriented test, living comfortably within the perpetrator perspective with no need of substantive interpretation. In this case, Brown was simply acknowledging that race was an “irrational classification” for dividing schools. While this sounds reasonable, and has the benefit of neutral appearance, Freeman notes that it collapses the moment one considers that segregating by race might have been the goal. If such is the case—as it was—then employing the classification “race” was straightforwardly rational. How else could one do it? Thus, the principle must mean much more and be much less neutral if it is to be an antidiscrimination principle at all.
Freemen suggests that one could still try to stay with in the means oriented interpretation by claiming that to be legally color-blind means there is no “valid governmental purpose” to legislating along racial lines. But, again, it is not hard to think of situations, had racism never existed, wherein there might be some valid governmental purpose to legislate according to race. In other words, it is because race is historically not a neutral category in America that color-blindness is proposed in the first place. Think, for example, of a school principal arranging students from darkest to lightest for a class photo, but for aesthetic reasons only. We would probably not find this objectionable in a society where color had never been a source of segregation, allocation of rights, access to goods and services, etc. But in our actual society with our actual history this is pretty similar to school segregation itself and thereby prima facie objectionable. And, therefore, if the color-blind theory is in fact the basis for desegregation under Brown, it is most certainly appealing to a notion of substantive equal protection, recognizing the actual history of racial subordination and victims’ circumstances, not just a formal, neutral, means oriented appeal to equal protection; and the victim perspective threatens to intrude.
The only way to avoid the latter conclusion has been, historically, to empty the idea of “color-blind law” of its originally intended remedial force. In order to keep it from logically collapsing into substantive equal protection, thereby requiring that courts give preference to the perspective of victims and their substantive circumstances, color-blind theory has come to mean that racial classifications of any sort are illegitimate—even for remedial purposes. In a sense, the Brown decision itself would violate this newly constructed and arbitrary means oriented principle, as the Court rightly acknowledged the category of race throughout its decision—really, the only way to roll back race-based legislation—and the lower courts, imposing desegregation, did the same.
Freeman notes the consequences of this final contradictory move:
By abstracting racial discrimination into a myth-world where all problems of race or ethnicity are fungible, the color-blind theory turns around and denies concrete demands of blacks with the argument that to yield to such demands would be impossible since every other ethnic group would be entitled to make the same demand. (p. 1066)
That is, the color-blind law theory only remains neutral and means oriented if we all pretend that race has never been a substantive factor, and if, additionally, we are willing to legislate according to an historically meaningless and arbitrary value—which color-blindness would in fact be if discrimination were never really a problem in the first place. Its purpose, then, becomes only to bar any substantive race-conscious remedies. The “color-blind law” theory either must take into account the substantive discriminatory conditions and racist history that it is supposed to address, or it is an abstraction that would be perfectly arbitrary in a race-neutral society. It is therefore either necessarily race-conscious—not neutral—or useless. In fact, it is worse than useless. Without the victim perspective, it is not an antidiscrimination principle at all and only serves to legitimize the status quo.
2. Equality of Educational Opportunity
Another option to explain Brown is that the Court sought to secure “equal educational opportunity” for both Blacks and Whites in America. “This approach corresponds with the fundamental right concept of equal protection” (p. 1067); viz., education is a fundamental right, therefore all are legally guaranteed access to an equal quality of education, regardless of race. Though the Court did in fact point to such a right in its decision, it, according to Freeman, nevertheless “stood for both more and less than a guarantee of equal educational quality.”
It came to stand for more insofar as its holding was quickly extended to other forms of state imposed segregation. But it stood for a great deal less insofar as black children today have neither an affirmative right to receive an integrated education nor a right to equality of resources for their schools, which, ironically, was a litigable claim under the regime of de jure segregation. (p. 1068)
That is, the Brown decision was taken to imply the end of segregated rail cars, parks, pools, etc., and was thus understood to be more than just an appeal to a fundamental right of equal education. But, as time has proven, the decision also did not guarantee a substantive equal protection to equality of education, which would have required remedial efforts toward securing equal educational circumstances for both Black and White students, and therefore has proven much less than is implied by a right to equality of education. At least under Plessy v. Ferguson—the “separate but equal” doctrine preceding Brown—one had grounds to sue the government for not providing the “equal” part. Increasingly under Brown, reflecting America’s continued commitment to the perpetrator perspective, the “separate” part was outlawed and litigable, but the “equal” part was assumed coextensive with the end of the “separate,” regardless of the disparate circumstances suffered by Black students. (See our LAST POST and Derrick Bell’s, “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation.”)
3. White Oppression of Blacks
A third option is the straightforward assertion that segregation was an instance of White people oppressing Black people. This approach was popularized by Charles Black in 1960:
First, the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states. Secondly, segregation is a massive intentional disadvantaging of the Negro race, as such, by state law. No subtlety at all. Yet I cannot disabuse myself of the idea that that is really all there is to the segregation cases.
Rather than seeking a neutral, multi-applicable legal principle to apply to the circumstance of school segregation, Professor Black, rather, takes the substantive equal protection view of the 14th Amendment, as discussed above, and regards as a matter of fact that segregation disadvantaged Black children and was therefore a “manifestation of racial oppression” (p. 1070). Thus, for Black, the Court’s holding in Brown was a straightforward adoption of the victim perspective. The principle invoked in the decision was to simply determine if a law or practice constitutes racial oppression. If it does, it violates the equal protection clause of the 14th Amendment. Simple. And most agree that this was, in fact, the most reasonable explanation of the Court’s decision.
The catch, of course, is that one can easily import the perpetrator perspective into the determination of what constitutes “racial oppression.”
4. Freedom of Association
Dr. Freeman next discusses the freedom of association view of Brown, not because anyone believes it was the historical rationale for the Court’s decision, but because it has been proposed as a neutral principle which can serve as a means oriented interpretation of equal protection. (See, e.g., Professor Herbert Wechsler in “Brown v. Board of Education and the Interest Convergence Dilemma,” by Derrick Bell.) In essence, the freedom of association argument is an appeal to “the due process right of people to associate with one another free of state interference” (p. 1071). As such, the freedom of association principle fits ably within the perpetrator perspective while ignoring the historical context of actual racism, exploitation, and legal and de facto racial subjugation, thereby also eschewing the substantive equal protection view of the 14th Amendment. It does not seek to protect African Americans from oppressive practices, but to allow individuals the freedom to associate with whomever they please without state interference. Freeman writes,
The freedom of association theory is as much a statement about the right to discriminate as it is about the right not to be discriminated against. All it outlaws is state action. The autonomous individual remains free to discriminate, or not, according to personal preference. Racial discrimination is thus wrenched from its social fabric and becomes a mere question of private, individual taste. (p. 1072)
And this is important to understand with reference to Brown, for all that the decision affected was state ordered discrimination. It wasn’t until the Civil Rights Act of 1964 that discrimination in public accommodations was outlawed nationwide. In 1954 and the years immediately following, the only possible perpetrator was the state, though the courts and subsequent legislation would soon extend the list of perpetrators.
Nevertheless, the doctrine contains an important lesson, one not so easily shaken (as we discussed its persistence in Part 2 of this series):
[T]he freedom of association theory implies a notion of racial equivalence similar to the color-blind theory’s idea that blacks and whites have equal grounds for complaint about instances of racial discrimination. In this sense, the two theories share a world view—the abstract utopia where racial discrimination has never existed and where, ironically, both theories would probably be irrelevant. The only way that discriminations by whites against blacks can become ethically equivalent to discriminations by blacks against whites is to presuppose that there is no actual problem of racial discrimination. It is just like saying today that the principles of freedom of association and color-blindness govern relationships between long- and short-ear-lobed people. (p. 1073)
5. The Integrated Society
Last, Dr. Freeman takes a look at antidiscrimination law under Brown from the perspective of intended results. “If particular practices are to be outlawed as deviations from a norm, then the norm must include within it a vision of society where there would not be such deviations.” Further,
It should then be possible to test current conditions against the desired end-state to decide whether progress is being made. The end-state usually associated with antidiscrimination law is some version of the “integrated society.” (pp. 1073-1074)
If the intention of a court or legislature is to eliminate an undesirable practice or to address a perpetrator, then one assumes that there is an ideal set of circumstances which would obtain without such illicit practices or perpetrators. Freeman notes that, as usual, there are a number of ways to conceptualize this ideal “integrated society.” One could imagine a future society where everyone is a “creamy shade of beige,” and thus race is irrelevant because it is literally unidentifiable. Or one could instead imagine a future society wherein race is still identifiable, but carries no social significance, any more so than eye color or size of earlobe. Yet another vision of a future integrated society could be one wherein racial difference was identifiable and relevant, but was seen only as a means of group cohesion, each living in tolerance of the other, with “no patterns of domination of oppression between different groups.”
Given this goal-oriented understanding of antidiscrimination law, no matter which vision we choose, we can immediately see some of the flaws in the other approaches listed above, beginning with color-blindness and freedom of association. In Freeman’s words:
Each of these visions of the future reflects the achievement of a casteless, if not classless, society in which there is no hierarchy of status that corresponds with racial identification. The essential defect in the color-blind theory of racial discrimination is that it presupposes the attainment of one of these futures. It is a doctrine that at the same time declares racial characteristics irrelevant and prevents any affirmative steps to achieve the condition of racial irrelevance. The freedom of association theory, to the extent it is antidiscrimination at all, also presupposes an already existing future, but it is the tolerance model that it contemplates. (p. 1074)
And these are not the only antidiscrimination theories which presuppose the current existence of the future society. The following quote from Freeman is worthy of great attention:
Suppose one were to visit the future society of racial irrelevance and discover conditions that in any other society might be regarded as corresponding with a pattern of racial discrimination. Among such conditions might be that one race seems to have a hugely disproportionate share of the worst houses, the most demeaning jobs, and the least control over societal resources. For such conditions to be fair and accepted as legitimate by the disfavored race in future society, they would have to be perceived as produced by accidental, impartial, or neutral phenomena utterly disassociated from any racist practice. Otherwise the future society would fail to meet its claim of racial irrelevance and would not be a future society at all.
Any theory of antidiscrimination law that legitimizes as nondiscriminatory substantial disproportionate burdens borne by one race is effectively claiming that its distributional rules are already the ones that would exist in future society. (pp. 1074-1075; emphasis mine)
And this “is a core difference between the victim and perpetrator perspective.”
From the perspective of a victim in present society, where plenty of explicitly racist practices prevail, the predictable and legitimate demand is that those ostensibly neutral rules demonstrate themselves to be the ones that would in fact exist in future society. The legitimacy of the demand is underscored by the fact that those very rules appealed to by the beneficiaries to legitimize the conditions of the victims were created by and are maintained by the dominant race. From the perpetrator perspective, however, those practices not conceded to be racist are held constant; they are presumed consistent with the ethics of future society, and the victims are asked to prove that such is not the case. (p. 1075)
In other words, the victim perspective rightly demands that a “neutral” practice producing racially disparate outcomes must prove itself to be consistent with the ethics of the future society; the burden of proof is on those defending practices which produce racially disparate outcomes. The perpetrator perspective, on the other hand, presumes the future society is now and demands that the victim prove, by demonstration of “fault” and “causation,” that the supposed neutral practice is not consistent with the ethics of the future society; the burden of proof is on those questioning their own race-wide subordinated circumstances.
Post-Brown Developments
Accordingly, for the remainder of this “Era of Uncertainty,” the courts continued in the perpetrator perspective, placing the burden on victims to prove that supposedly neutral practices were not in accordance with the future society. As such, the Court could rule in Strauder v. West Virginia that exclusion of Black Americans from juries was unconstitutional, having found evidence of “purposeful discrimination”; but in a parallel case, Swain v. Alabama, the court found no “purposeful discrimination,” though the extreme lack of jury representation by race was nearly identical.
Swain points up a deep contradiction in antidiscrimination law that sees no absurdity in legitimizing the precise result that would occur under the regime of de jure exclusion struck down in Strauder. Strict adherence to the perpetrator form makes results irrelevant; a concern with results violates the form. (p. 1079)
1965-1974: THE ERA OF CONTRADICTION, OR THE JURISPRUDENCE OF REMEDY
In the next era, following the passage of the 1964 Civil Rights Act, the Court began to violate “the form” while nevertheless pretending to adhere to it, remaining within the perpetrator perspective while dabbling in the victim perspective. As stated earlier, if the Court was going to make any meaningful move at all toward addressing discrimination it had no choice but to somehow play a remedial role beyond just identifying violations. But, in order to play a remedial role, the Court was required to address the substantive circumstances associated with discrimination. Thus, “[a] growing tension between the concepts of violation and remedy characterized the second era of antidiscrimination law.” To demonstrate this footing, Freeman discusses several Supreme Court decisions related to voting, education, and employment discrimination. Each, he shows, follows a similar pattern, though we will only discuss the pattern below, leaving the cases for independent study.
To begin with, in each of the cases Freeman discusses, the Court maintained the perpetrator perspective’s concept of “violation,” requiring an identifiable violator with whom one can establish “fault” and “cause,” as discussed earlier. But, once the Court had identified a violation and moved on to remediation, a new doctrine of violation began to emerge, “subtly chang[ing] the concept of violation by addressing itself to substantive conditions beyond the scope of the original violation” (p. 1079). Freeman suggests a few general examples of how this occurred.
The first he calls the “infinite series” problem. Imagine a jurisdiction that was nearly 100% White but had a recent influx of African Americans, such that the population was now roughly 60% White and 40% Black. If the legislature, in response, reapportioned the districts such that each district’s electorate was now 60% White and 40% Black, the courts would have clear justification, even under the perpetrator perspective, to find “violation.” Under this perspective, though, all that the court could do is pass it back to the legislature to craft a new apportionment plan. Suppose then that the legislature reworks the districts such that there is now one district that is 100% Black and every other district is 2/3 White and 1/3 Black. Is there still violation, or has it been remedied? The court, again, could send it back if it decides it still displayed “purposeful discrimination,” requiring a new apportionment. But what if there is no evidence of such “purpose?” Even though the plan still substantively disadvantages African Americans, just as had the original violative plan, the perpetrator perspective is powerless to address this fact, regardless of near identical impact.
Further, without identifiable “purpose,”
[t]o decide whether the second plan is discriminatory requires a comparison of that plan with a hypothetical state of affairs in a community where race is irrelevant. But that comparison is impossible as an abstract matter since, in a community where race was really irrelevant, neither of the plans described would seem odd; there would be no perceived relationship between race and political power.
Even more, we do not live in such a society. Therefore, the only way to determine whether the reapportionment plan is non-discriminatory is to compare it to a plan that produces reasonable proportionality within an actual society where political power is, or has been, racially distributed. But, notes Freeman, as soon as we account for the actual race sensitive conditions of political power distribution, we have already begun to employ the victim perspective. Without making this move toward incorporating the actual circumstances of victims into the analysis, there is simply no means for finding violation in the second or third plan, as argued above. Last, if the Court does nevertheless seek remedy under these circumstances, given that the series of plans began with clear violation, we must conclude with Freeman that,
[O]nce the question of racial political power becomes relevant in a community that once committed a traditional “violation,” it is difficult to see why it is not equally relevant in a community where, although no specific violation has been found, race is relevant, and there is extensive racial discrimination in all areas of life. At this point, what arose as remedy in one case threatens to define violation in another…. (pp. 1080-1081)
A second example is the “no results” situation. Imagine a school district which maintained legally ordered segregation for many years. Now imagine that the courts had intervened, finding that the district had violated the constitution, yet the district subsequently made no efforts to integrate after being found in violation. Next assume further that many years have gone by and factors outside the district’s rules have led to pretty much the same racial distribution as when first found in violation, factors such as ongoing neighborhood and employment discrimination, white flight, etc. Is there, at this point, still a violation to remedy under the perpetrator perspective? If the Court were, then, to order a redistribution of students to remedy the “segregation” that had existed since the original legal violation, on what basis could such integration proceed other than acknowledging and addressing the now existing discriminatory circumstances of the district and neighborhood? Thus, the original violation is found under the perpetrator perspective, but the attempt to remedy threatens to define a new violation—one without “purpose”—under the victim perspective. Further, under these circumstances, there is very little practical difference between a district found in de jure violation being required to integrate long after its segregation policy had been removed, and a district with the same racial distribution of students who never had such a de jure policy. If remedy is applicable to the former, why not the latter? And if remedy is applicable to the latter as well, then have we not a new definition of violation, one premised on discriminatory circumstances, i.e., the victim perspective?
The last example, what Freeman calls “the ostensibly neutral and rational practice” case, is probably the most familiar.
Suppose an employer who for years simply refused to hire any black workers at all suddenly, in response to recently enacted antidiscrimination law, adopts an aptitude test for prospective employees that just happens to exclude all black applicants. There is an inescapable inference that the employer is trying to do implicitly what can no longer be done explicitly, but there is no plausible evidentiary link between the prior practice and the current one. If one wants either to remedy what looks like a continuation of the earlier violation or avoid the no results dilemma, the neutral practice must be the target of inquiry. At that point, however, the analysis again shifts to the victim perspective, demanding that neutral practices producing conditions of discrimination at the very least justify themselves in terms of their own claims to rationality. Here again the plausible contention arises that the very same practices, as well as a lot of similar ones, should be required to justify themselves wherever they appear. (p. 1081)
A perfect example, supplied by Freeman, of this latter pattern is Griggs v. Duke Power Co (1971). In this case, the employer, as a matter of open company policy, had discriminated against Black Americans by limiting advancement to higher paying positions. In response to the 1964 Civil Rights Act, wherein such practices were outlawed, the employer changed his policy, now adding a diploma requirement as well as sufficient scores on a pair of competencies tests in order to advance out of the “black department.” When the suit came to the Supreme Court, the Justices saw their task as to determine,
whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites. (401 U. S. at 425-26)
The Court ruled unanimously that the policy violated Title VII. In the opinion of the Court,
The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. (at 431)
Hence, the court put the burden of justification on the supposedly neutral test, not the disenfranchised victims. The Court even went further.
The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. (at 433)
What is, in the end, so interesting about this and similar cases is that it demonstrates the Court’s intent, for a time, to remedy the circumstances of discrimination by modifying the traditional perpetrator perspective concept of “violation,” thereby expanding the formal “antidiscrimination principle” to include the perspective of victims and their discriminated real life circumstances. Griggs explicitly required the employer to demonstrate the racial neutrality of the test to avoid legal violation of Title VII. And the evidence required by the Court to prove such racial neutrality was demonstrably proportionate outcomes, thus forcing the employer to actively ensure fair representation throughout his company. By dabbling in the victim perspective, the Court effectively required businesses to voluntarily institute affirmative action programs to avoid violating Title VII.
Further, as Freeman notes, the Court’s response to both the “infinite series” problem, the “no results” situation, and the “ostensibly neutral and rational practice” case all suggest that,
the “intentional” violation in the three cases was adherence to a practice … that produced results associated with segregation. Under this view, retention of the practice in the face of its known results becomes a prima facie case of discrimination, again giving rise to a demand for rational justification. (p. 1102)
Thus, we see for a time—roughly 10 years—that the Court’s attempts to remedy traditional violations threatened to define a new form of violation, one based on the victim perspective, ensuring substantive equal protection. But, of course, this did not last long.
1974-?: THE ERA OF RATIONALIZATION, OR THE JURISPRUDENCE OF CURE
This final era is much easier to understand since we continue to live in it. While the first era was characterized by the uncertainty of what exactly Brown meant and how it would be applied, and the second era with how one might find remedies for actual victims while paying legal obeisance to the perpetrator perspective, this final era begins by declaring that “the war is over.” Again, detailing several Supreme Court decisions covering voting, education, and employment discrimination, Freeman shows just how quickly the seeming advancements of the previous era were overturned. In short, this era, according to Freeman, is marked by the attempt to “make the problem of racial discrimination go away by announcing it has been solved.”
Its simplest and most direct version is the declaration that, despite the discriminatory appearance of current conditions, the actual violation has already been cured, or is being remedied, regardless of whether the remedy prescribed can be expected to alleviate the condition. A more sophisticated approach is to declare that what looks like a violation, based on expectations derived from the era of contradiction, is not a violation at all. (pp. 1102-1103)
In this era—our current era, really—this has been accomplished by returning to a strict pre-Brown adherence to the perpetrator “form” described above, by (1) requiring explicit proof of “purpose to discriminate,” (2) by invoking the easily manipulable “causation” requirement wherein any chain of events can be disputed or restructured, (3) by presuming that “neutral” tests are rational if any purpose whatsoever or no purpose at all can be discovered, burdening victims to prove otherwise, and (4) by revising previously held statutory standards in order to reinterpret the decisions of the previous judicial era. (See, for example, the Court walk away from Griggs in Washington v. Davis.)
In summary—and this is all too familiar:
Central to the era of rationalization is the pretense—associated with the color-blind theory of racial discrimination—that but for an occasional aberrational practice, future society is already here and functioning. The contradictions implicit in the earlier cases are thus resolved largely by pretending they were never there. This resolution has in turn facilitated a quick and easy return to the comfortable and neat world of the perpetrator perspective. As a result, the actual conditions of racial powerlessness, poverty, and unemployment can be regarded as no more than conditions—not as racial discrimination. Those conditions can then be rationalized by treating them as historical accidents or products of a malevolent fate, or, even worse, by blaming the victims as inadequate to function in the good society. (p. 1103; emphasis mine)
And thus the legitimization of subordinated racial circumstances is complete, and the perpetrator perspective firmly restored.
Conclusion
Though certainly long and tedious (the article itself is over 70 pages), the discussion above has given us an indispensable basis for understanding the Critical Race Theory that would be born roughly 10 years following Freeman’s paper. We have seen a demonstration that the law is not best understood as a stable and transcendent arbiter of Justice needing only technical application to achieve Just results, but is in practice, rather, a reflection of evolving public morality and a preserver of predominating social structures and ideologies. We have seen also that the law is deeply indeterminate, with multiple, even contradictory decisions available within the accepted legal form. And, most importantly, we have seen that this law can be used to remedy, but has more often been employed in service of the status quo, presenting society as it is currently structured as necessary, normal, natural, and perfectly justifiable, racially subordinated circumstances and all. By the end of the so-called “Era of Rationalization,” vast society-wide racial disparities were easily justified as how the cookie crumbles; either that, or the victims themselves were to blame. The extreme relative poverty of African Americans prior to Brown was deplored as the work of evil racists; yet identical conditions just 10 – 20 years later were considered simply neutral facts of life. Right.
This understanding of law is integral to CRT’s answer to the questions we’ve been asking since Part 2 of this series: How, within the space of just twenty years, was the Civil Rights revolution so successfully stymied in making lasting substantive changes to the circumstances of African Americans? The signs had indeed come down, formal equality had been legally established, massive victories were won for civil rights throughout the nation at every level of government, yet the historically expected and inevitable social and economic disparities suffered by African Americans seemed obstinate, even entrenched. The answer from CLS, and Freeman in particular, is that the law, as a site of reform, is more likely to legitimize racism and racist systems than it is to remedy them, since it is only a reflection of a society’s dominate morality, existing distributive systems, and power structures. That is how law functions in real life. And, therefore, there should be no surprise that what originally appeared to be remedy only served in the end as justification.
In conclusion, I think this summary of Freeman’s article, by the founders of Critical Race Theory, reflects well CRT’s interest in Freeman’s work:
In direct challenge to the reigning idea of civil rights discourse as a rational and neutral development of uncontroversial norms of justice, Freeman presents Supreme Court doctrine as evoking two competing, and starkly contrasting, ideologies for presenting “racism”: the narrower, perpetrator perspective he argues, has been privileged over the more expansive vision. In contrast to Bell’s instrumental approach—within which doctrinal developments are seen to reflect fairly directly the relative balance of social interests—Freeman contends that legal doctrine must be understood as part of an ideological narrative about how race is understood, a narrative that can legitimate racial power by presenting it as neutral and objective. As he argues, the legal adoption of the perpetrator perspective is part of an ideological process through which forms of racial power that do not register on the perpetrator framework get implicitly represented as “not racism” and, thus, are pushed beyond the scope of remediation. (Critical Race Theory, p. 3)
In our next post, we will add a final piece to this foundational puzzle, discussing how CRT was born as a race-conscious reaction to both the Left and the Right.
