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Critical Race Theory: An Introduction Richard Delgado and Jean Stefancic Foreword by Angela Harris 11/27/2006 11:49 AM Racism

is inherently changing
Another, somewhat more recent, development concerns differential racialization and its many consequences. Critical writers in law, as well as social science, have drawn attention

dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market. At one period, for example, society may have had little use for blacks, but much need for Mexican or Japanese agricultural workers. At another time, the Japanese, including citizens of long standing, may have been in intense disfavor and removed to war relocation camps, while society cultivated other groups of color for jobs in war industry or as cannon fodder on the front. Popular images and stereotypes of various minority groups shift over time, as well. In one era, a group of color may be depicted as happy-go-lucky, simpleminded, and content to serve white folks. A little later, when conditions change, that very same group may appear in cartoons, movies, and other cultural scripts as menacing, brutish, and out of control, requiring close monitoring and repression.
to the ways the

Racism is hidden but exists Studies show that blacks and Latinos who seek loans, apartments, or jobs are much more apt than similarly qualified whites to be rejected, often for vague or spurious reasons. The prison population is largely black and brown; chief executive officers, surgeons, and university presidents are almost all white. Poverty, however, has a black or brown face: black families have, on the average, about one-tenth of the assets of their white counterparts. They pay more for many products and services, including cars. People of color lead shorter lives, receive worse medical care, complete fewer years of school, and occupy more menial jobs than do whites. A recent United Nations report showed that African Americans in the United States would make up the twenty-seventh ranked nation in the world on a combined index of social well-being; Latinos would rank thirty-third. Why all this is so and the relationship between
racism and economic oppressionbetween race and classare topics of great interest to critical race theory and covered later.

Critical Race Theory and Classical-Liberal Civil Rights Scholarship: A Distinction without a Difference? Author(s): Roy L. Brooks and Mary Jo Newborn Source: California Law Review, Vol. 82, No. 4, Symposium: Critical Race Theory (Jul., 1994), pp. 787-845 Published by: California Law Review, Inc. Stable URL: http://www.jstor.org/stable/3480932 . Accessed: 17/10/2013 16:47 FEO, the current approach to racism is flawed Formal equal opportunity (FEO) has been our nation's fundamental civil rights policy since Brown v. Board of Education. 5 Essentially, this policy reflects the idea that the State is required, by the equal protection provisions of the Fifth and Fourteenth Amendments, to act in an even- handed manner toward the races. However, to understand FEO more completely, it will be helpful to consider its two historical predecessors: the "separate-and-unequal" and "separate-but-equal" policies Signaling the end of three and one-half centuries of de jure and de aequitate racial segregation and discrimination, Brown gave birth to our current civil rights policy: formal equal opportunity (FEO). At its most basic level, FEO can be defined as a civil rights policy which requires that all Americans, regardless of race or color, are to have equal legal status. Such a policy seems essential if America shall ever become a racially symmetrical society. Thus, while the separate-but-equal policy sanctioned a society dominated by whites, FEO envisions a society in which the races are symmetrically situated. In furtherance of this social goal, the law must treat all groups, including

historically excluded groups, without reference to race or color and must, in addition, prefer racial integration over racial separation. Hence, FEO incorporates two policies-colorblindness and racial mixing-and uses them as vehicles for achieving its social agenda, the creation of a racially symmetrical society. Normative writing is built into this oppressoin
Leading race crits have been highly critical of both the "traditionalist" and "reformist" varieties of classical-liberal scholarship. Not surprisingly, race crits dispute the

race crits also criticize reformist scholars, who are willing to concede that FEO has been applied ineffectively, for defending the conceptual validity of FEO. Professor Richard Delgado, one of the most prolific legal scholars in the nation and a leading race crit, comments: "[Reformist] writing, [is] generally highly normative and rights-based in nature but cautiously incremental in scope and ambition . . . accepts the dominant paradigm of civil rights scholarship and activism, and urges that we work harder . . . within that paradigm."44 Thus, race crits attack reformists for advocating piecemeal social reform and continued loyalty to the FEO principle instead of radical social transformation. The reformists' approach is inadequate, race crits insist, because [it] FEO inevitably makes for bad civil rights policy.45 Arguing that FEO is conceptually flawed, race crits emphasize that the liberals' policy reacts only to the most obvious and grotesque forms of racism, whereas most forms of racism are deeply embedded in the framework of our society. According to race crits, racism is "normal science" in American society, and most forms of racism go unnoticed under FEO. As Professor Delgado states: Formal conceptions of equality treat racism as an anomaly, an ill- ness, a sort of cancer on an otherwise healthy body. They are aimed at deviations from a status quo or baseline assumed to represent equality. If we spot such a deviation, we punish it. But most racism is not a deviation. As a number of Critical writers have been pointing out, racial subordination is an ordinary, "normal" feature of our social landscape. It is "normal science"-the ordinary state of affairs. Because racism is an ingrained feature of our cultural land- scape, it looks ordinary and natural to everyone in that culture. It is "the way things are." Formal equal opportunity is thus calculated to remedy at most the more extreme and shocking forms of racial treatment; it can do little about the business-as-usual types of racism that people of color confront every day and that account for much of our subordination, poverty, and despair.46 As this passage suggests, the race crits' conception of "racism" is crucial to an understanding of CRT in general
traditionalists' claim that FEO has adequately protected racial minorities' civil rights since Brown. More radically, however, and of CRT's rejection of FEO in particular.

Racism isnt deviation, rather, based on behavior instead of some perfect moral code Racism is one of those words that many people use, and feel strongly about, but cannot define very clearly. Those who suffer from racism usually interpret the word one way while others interpret it quite differently.... Perhaps the best definition of racism is an operational one. This means that it must be based upon the way people actually behave, rather than upon logical consistency or purely scientific ideas. Therefore, racism may be viewed as any attitude, action, or institutional structure which subordinates a person or group because of his or their color. Even though "race" and "color" refer to two different
The race crits' conception of racism is evident in a famous statement made by Anthony Downs while appearing before the United States Civil Rights Commission: kinds of human characteristics, in America it is the visibility of skin color-and of other physical traits associated with particular color or groups-that marks individuals as "targets" for subordination by members of the white majority. This is true of Negroes, Puerto Ricans, Mexican Americans, Japanese Americans, Chinese Americans, and American Indians. Specifically, white racism subordinates members of all these other groups primarily because they are not white in color, even though some are technically considered to be members of the "white race" and even view themselves as "whites."47 Thus, the race crits define racism in both "substantive" and "procedural" terms.48 It is not simply attitudes or traditional racism (the belief in white superiority)49 that draws the race crits' attention; it is also individual or institutionalized behavior that has the effect of subordinating

racism is not so much overt racial hatred as it is the subconscious assumption made by some whites that an African American man walking in a white neighborhood is a dangerous criminal or is otherwise up to no good Race crits believe that classical-liberals and their FEO policy fail to address these subtle aspects of racism. They believe FEO has a fundamental conceptual flaw above and beyond its operational problems. FEO, the race crits argue, has only a
persons of color to whites. For example,

philosophical attachment to equal opportunity and, as a result, it does not go far enough to redress the day-to-day problems of racial minorities. It is not enough, in other words, to simply alter the legal status of African Americans or to otherwise enjoin future racial discrimination; these approaches ignore the damage caused by past and lingering racism. A commitment to redress such damage must be built permanently into any modem civil rights policy. FEO has failed and will continue to fail because it lacks this
commitment. Race crits also attack FEO for erroneously assuming the possibility and desirability of racial sameness, or equal legal treatment, and for ignoring legally significant

. It is wrong, CRT emphasizes, to treat the races as if they are symmetrically situated with regard to a legal rule, doctrine, policy, or practice when in fact they are not. African Americans, for example, are burdened by a history and continuing reality of racial oppression and subordination that whites do not share.50
differences between African Americans and whites

This form of policy making is flawed it FEO privileges white values over African American or other "outsider" values. For example, African American children are bussed to white schools and not vice versa because it is automatically assumed that white schools are "better" than African American schools.51 Equal treatment as envisioned by FEO also means that minorities are to be subjected, albeit in the "same" manner as whites, to terms and conditions that were established long ago by whites . Thus,
Finally, race crits argue that under FEO, a law school can legally dismiss an African American tenured professor who remains on leave beyond a certain period of time-determined by whites in accordance with their own values-to protest the law school's "racist" hiring practices.52 Even though protest and self-help are deeply held values among African Americans, FEO deems them

In principle, then, FEO requires only that the African American faculty member be treated the "same" way the law school would treat a white faculty member under "similar" circumstances. However, because such rules, which must now be applied "equally," were originally created by whites, FEO's symmetrical conception of racial equality merely perpetuates an existing pro-white bias. Given these criticisms of the classical-liberals' FEO policy, the ques- tions then become: What type of fundamental civil rights policy would CRT prefer? What is CRT's
"irrelevant" to the law school's decision. alternative vision of racial equality? We address these questions next

Specifically, the way their standard attempts to provide morality or justice to individuals absent questioning of the flaws of the criminal justice system exemplifies the way their standard creates arbitrary lines in the sand between who is deserving of morality and who is not; that turns their offense. Resisting racism comes before any other impact because it causes others to be seen as less than human, removing them from ethical calculations and making establishment of moral frameworks impossible; it is the root cause of violence that makes human extinction via warfare inevitable. Foucault:
What in fact is racism? It is

primarily a way of introducing a break into the domain of life that is under power's control: the break between what must live and what must die. The
appearance within the biological continuum of the human race of races, the distinction among races, the hierarchy of races, the fact that certain races are described as good and that others, in contrast, are described as inferior: all this is a way of fragmenting the field of the biological that power controls. It is a way of separating out the groups that exist within a population. It is, in short, a way of establishing a biological type caesura within a population that appears to be a biological domain. This will allow power to treat that population as a mixture of races, or to be more accurate, to treat the species, to subdivide the species it controls, into the subspecies known, precisely, as races. That is the first function of racism: to fragment, to create caesuras within the biological continuum addressed by biopower. Racism also has a second function. Its role is, if you like, to allow the establishment of a positive relation of this type: "The more you kill, the more deaths you will cause" or "The very fact that you let more die will allow you to live more." I would say that this relation ("If you want to live, you must take lives, you must be able to kill") was not invented by either racism or the modern State. It is the relationship of war: "In order to live, you must destroy your enemies." But racism does make the relationship of war-"If you want to live, the other must die" - function in a way that is completely new and that is quite compatible with the exercise of biopower. On the one hand , racism makes it possible to establish a

relationship between my life and the death of the other that is not a military or warlike

relationship of confrontation, but a biological-type relationship: "The more inferior species die out, the more abnormal individuals are eliminated, the fewer degenerates there will be in the
species as a whole, and the more Ias species rather than individual-can live, the stronger I will be, the more vigorous I will be. I will be able to proliferate." The fact that the other dies does not mean simply that I live in the sense that his death guarantees my safety; the death of the other, the death of the bad race, of the inferior race (or the degenerate, or the abnormal) is something that will make life in general healthier: healthier and purer. This is not, then, a military, warlike, or political relationship, but a biological relationship. And the reason this mechanism can come into play is that the enemies who have to be done away with are not adversaries in the political sense of the term; they are threats, either external or internal, to the population and for the population. In the biopower system, in other words, killing or the imperative to kill is acceptable only if it results not in a victory over political adversaries, but in the elimination of the biological threat to and the improvement of the species or race. There is a direct connection between the two. In a normalizing society, race or racism is the precondition that makes killing acceptable . When you have a normalizing society, you have a power which is, at least superficially, in the first instance, or in the first line a biopower, and racism is the indispensable precondition that allows someone to be killed, that allows others to be killed. Once the State functions in the biopower mode, racism alone can justify the murderous function of the State. So you can understand the importance-I almost said the vital importance-of racism to the exercise of such a power: it is the precondition for exercising the right to kill. If the power of normalization wished to exercise the old sovereign right to kill, it must become racist. And if, conversely, a power of sovereignty, or in other words, a power that has the right of life and death, wishes to work with the instruments, mechanisms, and technology of normalization, it too must become racist. When I say "killing," I obviously do not mean simply murder as such, but also every form of indirect murder: the fact of exposing someone to death, increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection, and so on. I think that we are now in a position to understand a number of things. We can understand, first of all, the link that was quickly-I almost said immediately-established between nineteenth-century biological theory and the discourse of power. Basically, evolutionism, understood in the broad sense-or in other words, not so much Darwin's theory itself as a set, a bundle, of notions (such as: the hierarchy of species that grow from a common evolutionary tree, the struggle for existence among species, the selection that eliminates the less fit) naturally became within a few years during the nineteenth century not simply a way of transcribing a political discourse into biological terms, and not simply a way of dressing up a political discourse in scientific clothing, but a real way of thinking about the relations between colonization, the necessity for wars, criminality, the phenomena of madness and mental illness, the history of societies with their different classes, and so on. Whenever, in other words, there was a confrontation, a killing or the risk of death, the nineteenth century was quite literally obliged to think about them in the form of evolutionism. And we can also understand why racism should have developed in modern societies that function in the biopower mode; we can understand why racism broke out at a number of .privileged moments, and why they were precisely the moments when the right to take life was imperative. Racism first develops with colonization,

or in other words, with colonizing genocide. If you are functioning in the biopower mode, how can you justify the need to kill people, to kill populations, and to kill civilizations? By using the themes of evolutionism, by appealing to a racism. War. How can one not only wage war on one's adversaries but also expose one's own citizens to war, and let them be killed by the million (and this is precisely what has been going on since the nineteenth century, or since the second half of the nineteenth century), except by activating the theme of racism
(Michel, 1976, Society Must be Defended: Lectures at the College de France, p. 254 -257, lecturer and professor at the College de France)

Why have a fair debate that produces education if that education promotes an intellectual discussion that literally excludes those humans that are considered Other. Failure to take the discursive questioning of the AC to account is an act of violence against that which is unknown, that which is different than Us. This shows the stereotypical justice-morality debate they want to have does not promote true justice or morality, but a twisted Americanized form that turns their terminal impacts. When we debate incessantly about instances of morality that are purely hypothetical and we have no control over, it skews our conception of what truly is morality, turns all their terminal impacts Schlag 2 writes:
Of course, once

it is widely recognized that normative legal thought is a technique of rhetorical manipulation, the recognition itself begins to produce certain performative effects. Once legal thinkers understand that the significance of the normative categories and the normative grammar is largely performative, they assume a new stance towards normative rhetoric. They see it as an instrumental vehicle for achieving their favorite political or moral ends. For example, consider the

normative word freedom. This particular word has a certain exchange value in our rhetoric and in our discourse. It is well known, for instance, that at present, freedom of [] enjoys a certain rhetorical advantage over security of []. That is to say, at present, freedom is rhetorically superior to security. As legal thinkers come to recognize this point, they try, of course, to associate freedom with their favorite values, leaving security as the word for competing or interfering values. Thus the exchange value of the freedom word rises in the rhetorical economy of legal thought. However, the rise in the exchange value of such normative words typically yields an inflationary spiral. Sooner or later everybody is using the freedom word . For a while, the political charm of the freedom word can survive accelerated circulation. The word remains important. It rema ins important because it remains performatively effective. It is perceived as a tool, a rhetorical lever. But precisely because the freedom word remains performatively effective, it is immediately pressed further into all sorts of instrumentalist enterprises, thereby further diffusing its constative significance. After a while, the freedom word doesnt mean much of anything. It isnt even a reliable rhetorical tool to get people to act, or to be or to say various things. On the contrary, everybody knows the trick: Freedoms just another word for getting you to do something you dont want to do . Now this linguistic metamorphosis is hardly limited to the freedom word. Rather, the linguistic devaluation affects the entire normative currency . In fact, it affects the entire grammar of normative legal thought. Hence, entire structures, entire complexes of normative legal thought become increasingly vacuous their purchase on the world, descriptive and regulatory, less and less credible. Even the performative value of these structures and complexes becomes weakened as legal thinkers come to recognize that their constative significance has been devalued. As the normative currency is devalued, the relation between normative structures and complexes , on the one hand, and the practices to which they ostensibly correspond, on the other, becomes weakened, attenuated. No longer is it possible to maintain a nave idealism or materialism where normative conceptions such as justice, liberty, consent, or community, either determine or are determined by the practices to which they ostensibly correspond. The language of determination, and even its softer, more nuanced dialects, no longer provide an adequate understanding of the situation of normative legal thought. Here, the point is not that normative legal thought has now become indeterminate, as opposed to some previous or possible state of determinacy. Rather, the point is that determination is no longer the appropriate frame of reference for charting the relation between normative legal thought and the practices it ostensibly addresses. (Pierre, Normative and Nowhere to Go, 1990, Professor of Law @ University of Colorado, Stanford Law Review, JPL)

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