* Copyright (c) 2000 by Reginald Leamon Robinson. Professor of Law, Howard University School of Law. B.A.(Phi Beta Kappa, Magna Cum Laude), Howard University (1981); M.A. (Political Science), University of Chicago (1983); Exchange Scholar (Political Science and Economics), Yale University (1984–85); J.D., University of Pennsylvania (1989); Ph.D. Candidate (Political Science), University of Chicago. Thanks to the 1997 Conference Planning Committee for the Third Annual Mid-Atlantic People of Color Legal Scholarship Conference, which was co-sponsored by and held at the University of Louisville Law School; to Dean Donald L. Burnett, Jr., of the Louisville Law School for his support and encouragement; to the University of Louisville Journal of Family Law for their support, patience, and participation; to the conference participants whose energy, excitement, and love made this conference a community, family experience; to Peter Alexander and Andrew Taslitz for reading and commenting on the entire manuscript; and to Lisa D. Fill (class of 1998), Felicia Yancey (class of 2000), and Petal Modeste (class of 2001), my research assistants, for their excellent skills and for the long hours on short notice. As founder of the Mid-Atlantic Conference, I would especially like to thank Enid Trucios-Haynes (Co-Chair), Cedric Powell (Site Coordinator), and Serena Williams (Co-Chair) for their hard work and great leadership. Of course, the politics and errata of this essay belong exclusively to me.
1 2 Neale Donald Walsch, Conversations with God: An Uncommon Dialogue 83 (1997). Cf. Carl Jung, The Concept of the Collective Unconscious, in The Portable Jung 59, 60 (Joseph Campbell ed. & R. F. C. Hull trans., Penguin Books 1976) (1971) (“In addition our immediate consciousness, which is of a thoroughly personal nature and which we believe to be the only empirical psyche (even if we tack on the personal unconscious as an appendix), there exists a second psyche system of a collective, universal, and impersonal nature which is identical in all individuals. This collective unconscious does not develop individually but is inherited. It consists of pre-existent forms, the archetypes, which can only become conscious secondarily and which give definite form to certain psychic contents.”).
2 By co-creation, I mean that each of us has been socially conditioned, principally in our primary environments, to accept that race, race consciousness (i.e., thinking of ourselves in racial terms), racism, and white supremacy are naturally occurring (i.e., human nature) and socially inevitable. See, e.g., Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge 19–20 (Anchor Books 1967) (1966) (“The world of everyday life is not only taken for granted as reality by the ordinary members of society in the subjectively meaningful conduct of their lives. It is a world that originates in their thoughts and actions, and is maintained as real by these.”). Once we accept that this inevitable social reality is upon us, we consciously and unconsciously focus our minds on race. This focus alone is sufficient to create and maintain race and race consciousness. See Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, in Critical Race Theory: The Cutting Edge 64, 65 (Richard Delgado ed., 1995) (“[Narratives] are nearly invisible; we use them to scan and interpret the world and only rarely examine them for themselves. Ideology—the received wisdom—makes current social arrangements seem fair and natural.”). However, despite this focus, each of us experiences race and race consciousness differently. Cf. W. Brugh Joy, Joy’s Way: A Map for the Transformational Journey 196 (1979). Joy writes:
Albert Einstein posited that two individuals observing the same event from two different points in space do not experience the same reality. Going even further than Einstein, I would state that two people who observed the same event from the same point in space at the same point in time (if it were physically possible) would not experience the same reality . . . [b]ecause each person’s focus of awareness is different.
Id. It is this difference that creates the opportunity for new thinking with each generation on race and race consciousness, and it is this difference that will eventually give so-called black people the courage to think of themselves without any veil of race and without any overlay of race consciousness. See id. (“There are, therefore, as many different realities occurring as there are foci of awareness.”).
3 See generally Doe v. Louisiana, 479 So.2d 369 (La. 1985) (unsuccessful action seeking mandamus to compel Department of Health and Human Resources to change deceased parents’ racial classification from “colored” to “white.”); see also Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, at 53–54 (1995).
4 See Adolph Reed, Jr., Skin Deep: The Fiction of Race, Village Voice, Sept. 24, 1996, at 22 (“Race ‘is purely a social construction; it has no core reality outside a specific social and historical context.’”); see generally Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1 (1994); United States v. Bhagat Thind, 261 U.S. 204 (1923).
5 See, e.g., Anthony Appiah, The Uncompleted Argument: Du Bois and the Illusion of Race, in “Race,” Writing, and Difference 21–37 (Henry Louis Gates ed., 1986) (arguing that race does not have a biological genesis but rather a sociological origin); Michel Marriott, Multiracial Americans Ready to Claim Their Own Identity, N.Y. Times, July 20, 1996, at A1 (“The very existence of multiracial people ... challenges this nation’s traditionally rigid notions of race.”); Doe, 479 So.2d at 372 (“Individual racial designations are purely social and cultural perceptions, and the evidence conclusively proves those subjective perceptions were correctly recorded at the time appellants’ birth certificates were issued.”).
6 See john a. powell, The “Racing” of American Society: Race Functioning as a Verb Before Signifying as a Noun, 15 Law & Ineq. J. 99, 104–05 (1997); see generally Berger & Luckmann, supra note 2. powell observes:
Racing is largely a top-down process where the more powerful group first denudes the racial Other of its self-definition. This is often done by denying the racial Other its language and culture and then assigning a set of characteristics to this group that are beneath those of the more powerful group. The dominant group becomes the invisible norm by which all others are unfavorably measured.
powell, supra (footnote omitted); see also Robert V. Guthrie, Even the Rat Was White: A Historical View of Psychology 3–46 (1976) (discussing not the biological or scientific basis for racial categories and measurements, racism, and white superiority, but the intellectual and academic commitment by early white anthropologists and psychologists who furthered the notion that American and European whites were superior to non-white races).
7 See Clarence Page, Showing My Color: Biracial Kids Face Burden of Two Worlds, Hous. Chron., Mar. 14, 1996, at 1 (“Black Americans who have internalized white supremacist attitudes and values become agents of those attitudes and values, enforcing them in others and passing them on to new generations more effectively than the Ku Klux Klan ever could.”); Jones v. Alfred Mayer Co., 392 U.S. 409, 445 (1968) (Brennan, J., concurring).
8 See, e.g., Jones, 392 U.S. at 445 (Douglas, J., concurring). Justice Douglas argued that:
Negroes have been excluded over and again from juries solely on account of their race, or have been forced to sit in segregated seats in courtrooms. They have been made to attend segregated and inferior schools, or been denied entrance to colleges or graduate schools because of their color. Negroes have been prosecuted for marrying whites. They have been forced to live in segregated residential districts, and residents of white neighborhoods have denied them entrance. Negroes have been forced to use segregated facilities in going about their daily lives, having been excluded from railway coaches, public parks, restaurants, public beaches, municipal golf courses, amusement parks, buses, and public libraries.
Id. at 445–46 (citations omitted).
9 See Jerome S. Bruner, Myth and Identity, in Myth and Mythmaking 276, 276–77 (Henry A. Murray ed., 1960). Jerome Bruner aptly argues:
Consider the myth first as a projection, to use the conventional psychoanalytic term. I would prefer the term “externalization,” for I do not refer solely to the tendency to project outward simulacra only of those impulses that we cannot accept in ourselves. . . . And when we are painting a picture or writing a poem or constructing a scientific theory, there comes a moment when “it,” the product we are producing, takes over and develops an autonomy of its own, an external existence. It is now the theory that requires the revision, not the theorist, the picture that needs this line here, and not the painter’s whim.
Id. Although I agree with Bruner’s basic argument, I think he has reduced the theorem to too fine a point. This reduction limits the inquiry solely to the theory, but in the case of racism, race consciousness, and white supremacy, the theory and the theorist continue to undergo construction, deconstruction, and reconstitution. See Jay P. Moran, Postmodernism’s Misguided Place in Legal Scholarship: Chaos Theory, Deconstruction, and Some Insights From Thomas Pynchon’s Fiction, 6 S. Cal. Interdisc. L.J. 155, 167 (1997) (“Neopragmatists, on the other hand, agree with poststructuralists that language mediates our understanding of the world, but they emphasize the contingent character of knowledge and language. Represented most notably by Stanley Fish and Richard Rorty, their approach is one of reconstruction: they are unmistakably optimistic that rhetorical exercises can achieve desirable social goals.”)(footnote omitted). As such, by focusing solely on the theory, Bruner ignores without much explanation what role whites and blacks play in the maintenance of race and race consciousness. As Mary Dudziak and others have argued, race as a construct is dynamic, constantly shaped by exigent and emergent circumstances in the social, political, and economic fora. See, e.g., Omi & Winant, supra note 3, at 17–18 (“[E]thnicity theory derived its agenda from the political imperatives of the period: to condemn in the liberal terms of the war years the phenomenon of racial inequality, which smacked of the kinds of despotism the U.S. was fighting.”); Derrick Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, in Critical Race Theory: The Key Writings that Formed the Movement 20, 23 (Kimberlé Crenshaw et al. eds., 1995)[hereinafter Key Writings] (“In many countries, where U.S. prestige and leadership have been damaged by the fact of U.S. segregation, [Brown v. Board of Education] will come as a timely reassertion of the basic American principle that ‘all men are created equal.’”); see generally Mary Dudziak, Desegregation as a Cold War Imperative, 31 Stan. L. Rev. 61 (1988).
10 See, e.g., Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (Justice Brown, in John Stuart Millian language, argued that “‘[w]hen the government, therefore, has secured to each of its citizens equal right before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.’”); see generally David Theo Goldberg, Racist Culture: Philosophy and the Politics of Meaning (1993); John Stuart Mill, Utilitarianism (1863); Micheal J. Sandel, Liberalism and the Limits of Justice (1982).See Bruner, supra note 9, at 277.
11 See Bruner, supra note 9, at 277.
12 Bruner, supra note 9, at 277. Bruner aptly argues:
What is the significance of this externalizing tendency? It is twofold, I would urge. It provides, in the first instance, a basis for communion between men. What is “out there” can be named and shared in a manner beyond the sharing of subjectivity. By the subjectifying of our worlds through externalization, we are able, paradoxically enough, to share communally in the nature of internal experience. By externalizing cause and effect, for example, we may construct a common matrix of determinism.
Id. Given the foregoing, we now have a basis to explain how we self-consciously create and maintain race, racism, and white supremacy. Cf. Teisen Deshimaru, The Zen Way to the Martial Arts 20 (Nancy Amphoux trans., 1982). According to Master Deshimaru, Master Kodo Sawaki wrote:
When we consider all the phenomena of all existences through the eyes of our illusions and errors, we may erroneously imagine that our original nature is contingent and mobile, whereas in reality it is autonomous and immobile. If we become intimate with our true mind and return to our original nature, then we understand that all phenomena, all existences, are inside our own minds, and that is true of every being.
Id.
13 See Reed, supra note 4, at 22. Adolph Reed argues that:
Racial difference is not merely reflected in enforced patterns of social relations; it emerges exclusively from them. . . . The hesitancy about accepting race’s contingency and fluidity shows just how thoroughly racialist thinking—which isn’t just bigotry but all belief that race exists meaningfully and independently of specific social hierarchies—has been naturalized in American life, the extent to which we depend on it for our conceptual moorings. However, the conviction of race’s solidity is undone by the ephemerality of the very categories that support it.
Id.; see also Deshimaru, supra note 12, at 12 (“Everything in the universe is connected, everything is osmosis. You cannot separate any part from the whole: interdependence rules the cosmic order.”)
14 See generally, e.g., Buchanan v. Warley, 245 U.S. 60 (1917); Corrigan v. Buckley, 271 U.S. 323 (1926); Shelley v. Kraemer, 344 U.S. 1 (1948); Barrows v. Jackson, 346 U.S. 249 (1953).
15 See generally, e.g., The Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896); Loving v. Virginia, 388 U.S. 1 (1967); Jones v. Alfred H. Mayer, Co., 392 U.S. 409 (1968); Trafficiante v. Insurance Co., 409 U.S. 205 (1972); Palmore v. Sadoti, 466 U.S. 429 (1984); United States v. Hunter, 459 F.2d 205 (4th Cir. 1972).
16 See, e.g., Omi & Winant, supra note 3, at 55.
17 See generally Gary Zukav, The Dancing Wu Li Masters: An Overview of the New Physics (Bantam 1980) (1979) (referring to physicists who believe that they are influencing whether they can either locate a sub-atomic particle but not its speed, or its speed but not its location).
18 See, e.g., Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1581 (1984) (“We guard ourselves against the risk of taking existential action against our alienation by repeatedly telling ourselves that our alienation is inevitable, while at the same time denying that this alienation exists.”). See generally Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769 (1992) (discussing the politics of distinction as the source of alienation within the black “community”).
19 See generally Gary Peller, Race Consciousness, 1990 Geo. L.J. 758 (1990); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060 (1991).
20 See, e.g., Shelby Steele, I’m Black, You’re White: Which of Us is Innocent?, Seattle Times, June 19, 1988, at A12; Reed, supra note 4, at 22 (arguing that “[w]hiteness became increasingly significant as a kind of safety net, providing a baseline of eligibility to rights, opportunities, and minimal social position. . . . By the turn of the current century, immigrants came quickly to understand the material advantages of being declared white. . . . It only made sense for immigrants to try to avoid being thus hampered [by the label “black”].”).
21 See Phyllis V. Schlemmer, The Only Planet of Choice 23 (Mary Bennett ed., 2d ed. 1996). Tom, the communicator for the Council of Nine, states:
[Humans] know they have come from the Creator. Therefore if you come from the Creator, are you not part of it? If a mother births a child, can you say that child does not contain part of that mother? Even a mother who is implanted, that child still has the blood supply of the implanted mother, is that not so? Then why is humankind not intelligent to understand that? That which Created did not remove intelligence. Does humankind prefer to remain ignorant, so there is no responsibility?
Id.
22 See, e.g., Toi Derricotte, The Black Notebooks: An Interior Journey 25 (1997). Derricotte writes:
I’m sure most people don’t go around all the time thinking about what race they are. When you look like what you are, the external world mirrors back to you an identity consistent with your idea of yourself. However, for someone like me, who does not look like what I am, those mirrors are broken, and my consciousness or lack of consciousness takes on serious implications. Am I not conscious because, like others, I am just thinking of someone else? Or is it because I don’t want to be conscious? Am I mentally ‘passing’?”). By mentally “passing,”
Id. Derricotte impliedly confesses that she remains consciously focused on race all the time.
23 Cf. Emily Fowler Hartigan, Law’s Alienation: Furies and Nomoi and Bears (and Nuns), 81 Marq. L. Rev. 473, 473 (1998). Hartigan writes:
When I first read Ludwig Wittgenstein’s Philosophical Investigations, one way I explained it to myself was that for Wittgenstein context is everything, or at least that it is integral to the meaning of everything. That is what Jacques Derrida’s ‘there-is-nothing-outside-the-text’ means for me. We, words, laws, books, even (in my tradition) God incarnate, are all embedded in the texture together.
Id. Berger and Luckmann also write on this point:
I apprehend the reality of everyday life as an ordered reality. Its phenomena are prearranged in patterns that seem to be independent of my apprehension of them and that impose themselves upon the latter. The reality of everyday life appears already objectified, that is, constituted by an order of objects that have been designated as objects before my appearance on the scene.
Berger & Luckmann, supra note 2, at 21–22.
24 See Barbara Quint, Coopetition: Sleeping With the Enemy: Cooperating Rivals Could Make for a Stronger Information Industry, Info. Today, Jan. 1, 1997, at 7 (“Pogo knew best. How did that sage ‘toon put it? Ah, yes. ‘We have met the enemy and he is us.’ Actually, the sage behind the ‘toon was Walt Kelley, creator of the ‘Pogo’ comic strip.”).
25 See Derricotte, supra note 22, at 17 (“I feel deeply that we cannot think of racism as something ‘out there.’ It happens and is connected to the most profound and present shaping elements in our lives. The effects of the great social forces trickle down to the most vulnerable. Racism is a form of child abuse.”).
26 See, e.g., Jane Gross, U.C. Berkeley at Crux of New Multiracial Consciousness, L.A. Times, Jan. 9, 1996, at A1.
27 Tanya Katerí Hernández, “Multiracial” Discourse: Racial Classification in an Era of Color-Blind Jurisprudence, 57 Md. L. Rev. 97 (1998).
28 Cf. Daniel L. Hamilton & Diane M. Mackie, Cognitive and Affective Processes in Intergroup Perception: The Developing Interface, in Affect, Cognition, & Stereotyping: Interactive Processes in Group Perception 1, 1–11 (Diane M. Mackie & David L. Hamilton eds., 1993) [hereinafter Affect, Cognition, & Stereotyping]; Shelby Steele, The Content of Our Character: A New Vision of Race in America 149–65 (1990) (discussing enemy-memory, subjective correlatives, and inversions as cognitive mechanisms that inhibit the many in which once violently oppressed people cope with and negotiate present race discrimination and economic opportunities). Steele writes:
I think one of the heaviest weights that oppression leaves on the shoulders of its former victims is simply the memory of itself. This memory is a weight because it pulls the oppression forward, out of history and into the memory of his oppression as through his experience in the present. What makes this a weight is that the rememberer will gird himself against a larger and formidable enemy than the one he is actually encountering. It was the intrusion of the enemy-memory that led me into an exaggerated and wasteful defensiveness.
Id. at 150. See generally, e.g., W.E.B. Du Bois, The Souls of Black Folks (Signet Classics 1995).
29 See Michael Omi & Howard Winant, On the Theoretical Status of the Concept of Race, in Race, Identity, and Representation in Education 3, 5 (Cameron McCarthy & Warren Crichlow eds., 1993) (referring to “W. I. Thomas’s famous dictum that if people ‘define situations as real they are real in their consequences.’”) (citation omitted).
30 See Lillian Smith, Killers of the Dream 69 (1994). Smith writes:
We whites have a color glaze on our imaginations that makes it hard to feel with the people we have segregated ourselves from. But I think, as they watched the signs go up, and saw wall after wall built by the law to shut them out from the life of their nation, that many of them blocked it off just as did white people. I think maybe they drew a little circle around their small personal lives and tried not to look beyond, for there were sinister sounds and shadows outside.
Id.
31 See Omi & Winant, supra note 29, at 5 (“[A]t the level of experience, of everyday life, race is an almost indissoluble part of our identities. Our society is so thoroughly racialized that to be without racial identity is to be in danger of having no identity.”); Smith, supra note 30, at 68–69 (“For we used those lynchings as a symbolic rite to keep alive in men’s minds the idea of white supremacy and we set up a system of avoidance rites that destroyed not bodies but the spirit of men.”).
32 See Ludwig Wittgenstein, Philosophical Investigations at § 241 (G.E.M. Anscombe trans., 1958).
33 See, e.g., Joseph Boskin, Sambo: The Rise & Demise of an American Jester 15 (1986). In describing how different types of buffoonery were used to describe blacks, Boskin writes:
Little attention has been directed to the extensive role of the image and its fact and form throughout the culture and its connection to stereotyping. Fewer still have wrangled with the intricacies of humor in this instance and its relationship to an American iconical type. Sambo’s reach was extraordinary, affected other minority images, and to a degree still lingers in the contemporary period.
Id.; see also Richard A. Apostle et al., The Anatomy of Racial Attitudes 24 (1983) Apostle details a response to a question about the essential difference between blacks and whites: “Whites are obviously of the higher intellectual quality. This is proved by the fact that mostly whites have high governmental positions. Blacks tend to be lazy and live on welfare. They seem to have little intellectual capacity except in athletics.” Id.; Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 317–18 (1987) (discussing the impact the story Little Black Sambo had on him when he was a child).
34 See John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, in Key Writings, supra note 9, at 315, 319. Discussing John Brenkman favorably, Calmore writes:
[Brenkman] sees culture as constituting the forms of symbolization, representation, and expression through which a group secures its identity and solidarity. Culture enables a group to situate reciprocal relationships and mutual understandings while simultaneously differentiating itself from other groups with which it is interdependently linked, whether as a matter of cooperation or of antagonism.
Id.; see also Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 Cornell L. Rev. 1258 (1992). Delgado and Stefancic aptly state:
We choose racism and racial depiction as our principal illustration. . . . Each of these [museum] collections depicts a shocking parade of Sambos, mammies, coons, uncles—bestial or happy-go-lucky, watermelon-eating—African-Americans. They show advertising logs and household commodities in the shape of blacks with grotesquely exaggerated facial features. They include minstrel shows and film clips depicting blacks as so incompetent, shuffling, and dim-witted that it is hard to see how they survived to adulthood. Other images depict primitive, terrifying, larger-than-life black men in threatening garb and postures, often with apparent designs on white women.
Id. at 1259–60 (footnotes omitted).
35 See Charles R. Lawrence III, Race, Multiculturalism, and the Jurisprudence of Transformation, 47 Stan. L. Rev. 819, 829 (1995) (“Blacks, Asians, and Latinos learn and adopt the belief systems of the dominant white culture.”).
36 Calmore, supra note 34, at 325 (“It is through dominant cultural understandings, then, that whites act out and reinforce racism as it is found in social relations, institutional arrangements, and personal behaviors. Generated through culture, racism is self-generative, and thus change is difficult because the appearance of change often substitutes for substantive change.”).
37 Lawrence, supra note 35, at 829–30.
People of color are taught to hate themselves in a white supremacist culture. White racism is internalized. We straighten our hair and bleach our skin. We pay plastic surgeons to make our eyes look round. We use the white man’s words to demean ourselves and to disassociate ourselves from our sisters and brothers. And then we turn this self hate on other racial groups who share with us the ignominy of not being white. When we do this we borrow a lexicon of racism that originates in white supremacy.
Id. (footnote omitted). See generally Reginald Leamon Robinson, Race Consciousness: A Mere Means of Preventing Escapes from the Control of Her White Masters? An Allegoric Essay, 15 Touro L. Rev. 401 (1999).
38 See, e.g., Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Calif. L. Rev. 733, 739 (1995). Jody Armour asserts:
Citing a series of reports on attitudes of white Americans toward black Americans appearing in Scientific American between 1956 and 1978, Charles E. Case and Andrew M. Greeley conclude that “there has been a continuous increase in the percent of whites who favor equal treatment for blacks in all areas of American society” since 1942. Furthermore, responding to commentaries suggesting a resurgence of racism in the late 1980s, Charlotte Steeh and Howard Schuman reviewed surveys conducted between 1984 and 1990 on young white adults and concluded that the survey data show that there is “no widespread, systematic decline in liberal racial attitudes among those people entering adulthood from 1960 to 1990.”
Id.; see also Caryl R. Lucas, King Legacy Lives Among Generations Born Later, Star-Ledger (Newark, N.J.), Jan. 15, 1996, available in 1996 WL 7911545. Caryl Lucas writes:
But members of the so-called Generation X say they still can find personal meaning in King’s crusade for social justice, and for a still-unfulfilled dream of racial equality.
“Dr. King’s dream for peace, racial equality and harmony offers us hope for the future,” said Stephen Thomas, 19. “Our generation can use his non-violent philosophy so we can come together. So we can make sure the progress continues.”
Id.
39 See Larry Muhammad, Hip to Be Hybrid: Multiracial Young People Find Growing Pride in Their Heritage, Courier-J. (Louisville, Ky.), Aug. 8, 1999, at 1H. (“It is the children of these couples who are demanding acceptance and bridling at the indentity choices forced on them by race-conscious society.”). One college student explained his situation: “I fill out ‘black’ on forms, and I do feel like I’m slighting my mother’s heritage. But I can’t put ‘white,’ because they’d look at me and say, ‘No, you’re black.’ And I can’t put ‘other.’ It just makes me feel like nothing.” Id.
40 See Jeff Dickerson, Hardening of Attitudes: A True Social Disease, Atlanta J., Nov. 4, 1997, at A6 (“Are we creating a new generation of racists? Quite clearly, we are. The way we raise our kids—even some social policies—are creating new rounds of racial resentment among all classes and races.”). See generally Lilia I. Bartolome & Donaldo P. Macedo, Dancing with Bigotry: The Poisoning of Racial and Ethnic Identities, 67 Harv. Edu. Rev. 222 (1997) (arguing that by looking critically at mass media and the popular press, politics of racism and racial divisions operate as part of America’s mainstream ideology, affecting thus not only racist hate groups but also every citizen).
41 See Michal R. Belknap, Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South 5 (1987). Belknap writes that:
One of the [Ku Klux Klan] movement’s principal instruments was lynching. Whites whipped and even killed blacks for often trivial reasons. A “nigger hunt” in Louisiana’s Bossier Parish that took 120 lives in 1868 was only the most extreme example of a phenomenon which became widespread during Reconstruction. . . . The epidemic of extralegal executions which began during Reconstruction grew worse in the 1880s, . . . reach[ing] a peak in the 1890s.
Id. See generally Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877 (1988); Ron Takaki, Strangers from a Different Shore (1989).
42 See generally Fair Housing Act, 42 U.S.C. § 3631 (1997) (prohibiting racial violence and discrimination through acts that coerce, interfere, or intimidate citizens who exercise their rights under Title VIII or who are protected under the Fair Housing Act).
43 See generally, e.g., Adarand Constr. Co. v. Peña, 515 U.S. 200 (1995); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
44 See, e.g., Fayneese Miller Xae et al., The Contextualization of Affirmative Action: A Historical and Political Analysis, 41 Am. Behav. Scientist 223 (Oct. 1, 1997); Michael Meyers, The Color of Change: Two Books Take Different Approaches to Examining America’s Oldest Dilemma, Boston Globe, Nov. 9, 1997, at L1 (reviewing Stephan Thernstrom & Abigail Thernstrom, America in Black and White: One Nation, Indivisible (1997); Jonathan Coleman, Long Way To Go: Black and White in America (1997)) (“By most measures, blacks are still second-class citizens in terms of housing, income, jobs, education, and their treatment when shopping or even traveling in white sectors.”); see also Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991).
45 See, e.g., Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343, 349–54 (1991) (chronicling incidents of racial intolerance and individual racism on college and university campuses of Dartmouth College, Columbia University, University of California-Berkeley, Stanford University, University of Massachusetts, University of Michigan).
46 See, e.g., Penni Roberts, Controversy Surrounds March into Grays Ferry, Phila. Trib., Mar. 21, 1997, at 1A (“‘We confess and recognize that racism has been a sin in our community for years. It is our hope and prayer, however, as leaders of our religious community, that we will work together to confront these issues. We hope that our united efforts will effect racial tolerance and sensitivity and replace deep seated racial disharmony.’”); UN Secretary-General Calls for Twenty-First Century Free of Racism, M2 Presswire, Mar. 21, 1997, available in 1997 WL 8032040 (“Racial tolerance remains a global imperative.”).
47 See Karl N. Llewellyn, A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431, 453 (1930) (stating that categories that obscure data and observations are “peculiarly troublesome in regard to legal concepts, because of the tendency of the crystallized legal concept to persist after the fact model from which the concept was once derived has disappeared or changed out of recognition.”); Introduction: Critical Legal Studies, in Jurisprudence: Contemporary Readings, Problems, and Narratives 213, 214 (Robert L. Hayman, Jr. & Nancy Levit eds., 1994) (“Current legal theory also constrains thought by treating existing doctrines, rules, and categories as necessary and inalterable. This keeps people from imagining alternative visions or social roles or dispute resolution mechanisms or tests of discrimination.”); see generally Smith, supra note 30.
48 See generally Michel Foucault, The Archaeology of Knowledge & The Discourse on Language (A. M. Sheridan Smith trans., 1972); Robert Audi, Epistemology: A Contemporary Introduction to the Theory of Knowledge (1998); Frances A. Maker & Mary Kay Thompson Tetreault, Learning in the Dark: How Assumptions of Whiteness Shape Classroom Knowledge, 67 Harv. Educ. Rev. 321 (1997).
49 See Derricotte, supra note 22, at 26–27. Derricotte writes:
The first day out [on a cross-county train trip], a young white man sat in the seat beside me. We had had a very pleasant conversation, but at night, when I grew tired, I asked him if he would go back to his seat so that I could stretch out. He said, “If you saw what’s sitting in the seat beside me, you’d know why I can’t go back.” Of course, I knew without looking back what he meant, and as I stood up and turned around to see . . . . , sure enough, there was young black man, a soldier, sitting in the seat. I said, very softly, “If you don’t want to sit next to him, you don’t want to sit next to me.” I had hoped he’d be too stupid or deaf to understand. But he grew very quiet and said, after a few minutes, in an even softer voice than mine, “You’re kidding.” “No,” I said. “You’re kidding,” he said again. “No,” I said. “You’re kidding.” Each time he said it, he grew quieter. He excused himself. He may have slept in the bathroom. Every other seat was taken, and when I looked back to see if he was sleeping beside the soldier, the seat was empty.
Id.
50 Du Bois, supra note 28, at 45.
51 163 U.S. 537 (1896).
52 Du Bois, supra note 28, at 87–89 (discussing what blacks have lost as a consequence of white supremacy and Booker T. Washington’s social theory and economic development philosophy).
53 See generally, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1854) (Taney, J.).
54 See Manning Marable, Black Leadership 43 (1998) (arguing that black nationalists identified with people of African descent, opposed blacks who sought integration, and advocated blacks’ educational, economic, and cultural self-reliance).
55 See, e.g., Kenneth B. Clark, Dark Ghetto: Dilemmas of Social Power 65 (1967).
To the Negro child the most serious injury seems to be in the concept of self-worth related directly to skin color itself. Because school is a central activity at this age, his sense of inferiority is revealed most acutely in his lack of confidence in himself as a student, lack of motivation to learn, and in problems with behavior—a gradual withdrawal or a growing rebellion. . . . In addition, there is the possibility that poor teaching, generally characteristic of the ghetto schools, tends to reinforce his sense of inferiority and to give it substance in the experience of inferior achievement.
Id.
56 Marable, supra note 52, at 43–44.
57 See id. at 44.
58 Cf. Art Berman, From the New Criticism to Deconstruction: The Reception of Structuralism and Post-Structuralism 74–75 (1988) (“Anguish, according to the existentialists, arises in the face of an experience that creates dilemmas, incongruities, and uncertainties that no accumulation of knowledge or fact can ultimately resolve yet that nevertheless require human action.”).
59 See Robinson, supra note 37, at 407–18 (discussing the epistemic search for an identity beyond that which is socially and consciously mediated by race).
60 Marable, supra note 52, at 46–47. On this point, Du Bois wrote:
Thus it is the bounden duty of black America to begin this great work of the creation of beauty, of the preservation of beauty, of the realization of beauty, and we must use in this work all the methods that men have used before. And what have been the tools of the artist in times gone by? First of all, he has used the truth—not for the sake of truth, not as a scientist seeking truth, but as one upon whom truth eternally thrusts itself as the highest handmaid of imagination, as the one great vehicle of universal understanding. . . . The apostle of beauty thus becomes the apostle of truth and right not by choice but by inner and outer compulsion. Free he is but his freedom is ever bounded by truth and justice; and slavery only dogs him when he is denied the right to tell the truth or recognize an ideal or justice. Thus all art is propaganda and ever must be, despite the wailing of the purists. . . . I do not care a damn for any art that is not used for propaganda.
Id. (citing W.E.B. Du Bois, Criteria of Negro Art, Crisis, Oct. 1926, at 290–92.) In effect, then, Du Bois recognizes that white superiority fatally injures blacks. Yet, he rejects a pursuit of true self-consciousness, an essential self, that so-called blacks could use to destroy a consciousness that depends for its existence on a racial identity.
61 Cf. Martin Heidegger, Hegel’s Concept of Experience 7–8 (Kenley Royce Dove trans., 1989) (quoting W. Hegel’s Phenomenology of Spirit).
It is a natural assumption that, in philosophy, one must first come to an understanding concerning the nature of knowledge before taking up the real subject matter, namely, the actual knowledge of what truly is. Knowledge, in turn, tends to be regarded as the instrument with which one takes hold of the absolute or as the medium through which one discovers it. The concern that there may be various kinds of knowledge, of which one might be better suited than another for attaining the end in view, seems moreover legitimate, for by making an erroneous choice among them one will thus grasp clouds of error instead of the heaven of truth; and when knowledge is taken to be a faculty of a determinate kind and scope, the concern once again seems legitimate that error will be grasped instead of truth unless the nature and limits of this faculty are still more precisely determined.
Id.
62 Cf. id. at 8–9. Hegel argues:
For if knowledge is the instrument to take hold of the absolute essence, one is immediately reminded that the application of an instrument to a thing does not leave the thing as it is, but brings about a shaping and alteration of it. Or, if knowledge is not an instrument of our activity, but a more or less passive medium through which the light of truth reaches us, then again we do not receive this truth as it is in itself, but as it is in and through this medium. In both cases we employ a means which immediately brings about the opposite of its own end; or, rather, the absurdity lies in our making use of any means at all. To be sure, it does seem that an acquaintance with the way the instrument functions might help us overcome this difficulty. For then it would seem possible to get the truth in its purity simply by subtracting from the result the instrument’s part in that representation of the absolute which we have gained through it.
Id.
63 See Reginald Leamon Robinson, Race, Myth, and Narrative in the Social Construction of the Black Self, 40 Howard L.J. 1, 32–33 (1996).
[Whites] invest huge sums of psychic energy not in fulfilling their soul’s desire for True Liberty but in denying blacks and other people of color their equal place in the world. As James O’Fallon and Cheyney Ryan would argue, when these whites fail to recognize blacks as equals, they only succeed in repressing their own humanity. Later, some whites may make the rude discovery that they have only a few degrees more liberty and perhaps far less humanity than do blacks or the socialized Other. By working to hold blacks back, whites have had to sacrifice their deep desire for true recognition by staying behind to guard America’s socio-psychological internment camp called Black Oppression.
Id. at 33 (footnote omitted)(citing James M. O’Fallon & Cheyney Ryan, Finding a Voice, Giving an Ear: Reflections of Masters/Slaves, Men/Women, 24 Ga. L. Rev. 883, 884 n.6 (1990)). See Clarence Page, Showing My Color: Impolite Essays on Race and Identity 43 (1996) (“African Americans can ill afford to paint too broad a brush of condemnation and repeat the errors of white racists who, by holding down blacks, held themselves back, too.”). See also Marable, supra note 54, at 45 (“White Americans as a group were so heavily bombarded with racial stereotypes that their relations with blacks as individuals and as a group were largely predetermined, structured on a basis of antagonistic conflicts, competition, and hatred.”); see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 445 (1968)(Brennan, J., concurring). Justice Brennan stated:
The true curse of slavery is not what it did to the black man, but what it has done to the white man. For the existence of the institution produced the notion that the white man was of superior character, intelligence, and morality. . . . While the institution has been outlawed, it has remained in the minds and hearts of many white men.
Id.
64 See Calmore, supra note 34, at 315 (“As many whites experience competitive advantage and relative prosperity over blacks, they are encouraged to believe in an imagined cultural superiority that, in turn, reinforces their conviction—like that of nineteenth-century missionaries—that our blackness is a condition from which we must be liberated.”); see also David L. Hamilton et al., The Influence of Affect on Stereotyping: The Case of Illusory Correlations, in Affect, Cognition, & Stereotyping, supra note 28, at 39–61.
65 See generally, e.g., George M. Fredrickson, Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817–1914 (1971).
66 See Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390 n.84. Caldwell posits:
Like the braiding of hair, the wearing of headwraps has been a constant cultural practice among black women wherever they exist in the world. However, the cultural significance of this practice had been perverted in the minds of blacks and whites alike by race-gender stereotyping. Depictions of black women with covered heads typically denote servitude, and early depictions of Aunt Jemima show her not only with covered head but also with exaggeratedly black skin, bulging eyes, a wide mouth, large red lips, and oversized teeth. These exaggerations reinforce the notion that blacks, especially black women, symbolize ugliness, and that the black woman’s ugliness justifies her servitude.
Id.
67 See Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 94 (1994). As Massey and Denton describe:
White apprehensions about racial mixing are associated with the belief that having black neighbors undermines property values and reduces neighborhood safety. According to the Newsday poll, 58% of Long Island’s whites believe that property values fall once blacks enter a neighborhood (in fact, evidence suggests the opposite, at least during the transition process). Likewise, among whites in Detroit who said they would leave if blacks moved into their neighborhoods, 40% believed that property values would decrease after black entry, and 17% believed that the crime rate would rise.
Id.
68 Cf. Calmore, supra note 34, at 318. Calmore writes:
[J]azz critics sought to devalue the music of [Archie] Shepp and other blacks who had departed from the mainstream. These critics argued that jazz is not primarily an African-American art form because anyone can learn to play it; jazz has no particular social content—”specifically, it in no way pertains more closely to black experiences, perceptive modes, sensibilities, and so on, than it does to white.”
Id.
69 See, e.g., Rex W. Huppke, Racism “Not a Closed Story”—Goes in Cycles: Recent Events Demonstrate Battle Is Far From Over, S. Bend Trib., May 26, 1998, at A1(“In January, about 20 black law students at Indiana University–Purdue University at Indianapolis received threatening racist letters.”); Joseph A. Kirby, NAACP Conclave Re-Examines Police Brutality, Chi. Trib., July 16, 1997, at 4 (“Blacks and minorities here and all over the country are in danger of losing their lives to police brutality. It’s a fact of our lives.”); Alvin Peabody, Black Press Urged to Explore Issue of Police Brutality, Wash. Informer, Feb. 4, 1998, at 1 (“Anthony ‘Van’ Jones is the 29-year-old founder and director of the Bay Area Police Watch/Ella Baker Center for Human Rights in San Francisco. Since his graduation from Yale Law School, Jones said he has been bombarded with complaints about police brutality on area residents.”).
70 See, e.g., Keith Aoki, Direct Democracy, Racial Group Agency, Local Government Law, and Residential Racial Segregation: Some Reflections on Radical and Plural Democracy, 33 Cal. W. L. Rev. 185, 200–01 (1997). Aoki writes:
Much of the continuing residential exclusion of Blacks can be attributed to personal prejudice, as documented by a recent study on housing segregation in the Los Angeles area. According to the study, ‘The comfort level (with a racially mixed neighborhood) dropped sharply for Asians and Latinos if hypothetically more than a third of their neighbors were to be black.’ White respondents to the survey shared this sentiment, although to a lesser degree.
Id. (footnotes omitted).
71 See, e.g., Martha R. Mahoney, Segregation, Whiteness, and Transformation, 143 U. Pa. L. Rev. 1659, 1664 (1995) (“Ruth Frankenberg divides whiteness into a set of ‘linked dimensions’: a location of structural advantage and race privilege; a ‘standpoint’ from which white people look at ourselves, at others, and at society; and a set of cultural practices that are usually unmarked and unnamed.”). Mahoney writes that:
Rosaldo describes “culture” as something perceived in someone else, something one does not perceive oneself as having. . . . What we ourselves do and think does not appear to us to be ‘culture,’ but rather appears to be the definition of what is normal and neutral, like the air we breathe, transparent from our perspective.
Id. at 1664–65 (footnote omitted).
72 Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996); Adarand Constr. Co. v. Peña, 515 U.S. 200 (1995).
73 See, e.g., Louis Freedberg, Clinton to Spotlight Minority Law School Admissions/Big Drop Without Affirmative Action, S.F. Chron., June 13, 1997, at A5 (“The number of black students offered admission at Boalt Hall School of Law at UC Berkeley declined from 75 last year to 14 this year, less than 2 percent of the 792 students accepted at the state’s most prestigious law school.”).
74 See Rollo May, The Cry for Myths 20 (1991). Rollo May correctly argues:
Myths are our self-interpretation of our inner selves in relation to the outside world. They are narrations by which our society is unified. Myths are essential to the process of keeping our souls alive and bringing us new meaning in a difficult and often meaningless world. Such aspects of eternity as beauty, love, great ideas, appear suddenly or gradually in the language of myth.
Id. May also argues that “[e]very individual who needs to bring order and coherence into the streams of her or his sensations, emotions, and ideas entering consciousness from within and without is forced to do deliberately for himself what in previous ages had been done for him by family, custom, church, and state.” Id. at 21.
75 Cf. Robinson, supra note 61, at 31. I wrote:
[I]f Mr. Gore [the overseer] were to analyze critically and to read deconstructively the role that his own category plays in this socio-linguistic drama, he would understand that a fatal blow to the master also immediately ends his life as a category, terminates his identity as a powerful white man, and liberates his consciousness as a true spirit. Out of pure spiritual ignorance and complete self denial, Mr. Gore must resist this rhetorical and dialectical foray if he wishes to preserve his master and thus save himself. To do otherwise, would require Mr. Gore to risk madness through the loss of an apparently immutable self-identity.
Id. (footnote omitted). As such, whites who resist changes in the old-world myth of race relations cannot imagine living without them, and whites would prefer to fight to keep the familiar myth, however outmoded it is vastly becoming, than to fashion a new mythology that positions blacks, whites, and others as spiritual equals.
76 See, e.g., Daniel Farber & Suzanne Sherry, Beyond All Reason: The Radical Assault on Truth in American Law 4–5 (1997) (“This book is an attempt to expose these risks in the hope of diminishing some of the allure of social constructionism and related theories.”); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 Notre Dame L. Rev. 503 (1997); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989); see also Richard A. Posner, The Skin Trade, New Republic, Oct. 13, 1997, at 40; George F. Will, Playing the Race Card, Oregonian (Portland, Or.), Nov. 29, 1996, at B8.
77 See, e.g., Robinson, supra note 63, at 35–36.
[A] host of dialectically critical movements have formed within the academy from legal realism to postmodernism and Critical Race Theory. Subsequently, these white males are realizing, in fits and starts, that Fem Crits and Race Crits have found a critical methodological tool to undermine what must be their false recognition, and to expose the empty content (save for brute power) of the methodology on which a white law professor’s racial and institutional privileges have been based. The methodology of traditional legal scholarship rests on a fount of racism, sexism, and the generalized oppression of the Other.
Id.
78 See Du Bois, supra note 28, at 45; Joe R. Feagin & Hernán Vera, White Racism: The Basics 173 (1997) (“Most research on whites’ racial attitudes is focused on how whites see the ‘others.’ The question of how whites see themselves as they participate in a racist society has been neglected. A recent article in a leading counseling journal has criticized models of white racial identity, such as they are, for being based on white views of minorities and on minority models of racial identity.”).
79 See generally, e.g., Doe v. Louisiana, 479 So.2d 369 (La. 1985); United States v. Bhagat Thind, 261 U.S. 204 (1923).
80 See, e.g., Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 445 (1968) (Brennan, J., concurring).
81 Du Bois, supra note 28, at 54 (“The problem of the twentieth century is the problem of the color-line,—the relation of the darker to the lighter races of men in Asia and African, in America and the islands of the sea.”).
82 See generally Jacque Derrida, Margins of Philosophy (Alan Bass trans., 1982).
83 1 Neale Donald Walsch, Conversations with God: An Uncommon Dialogue 16 (1996) (“Yet, if you know Who You Are—that you are the most magnificent, the most remarkable, the most splendid being God has ever created—you would never fear. So who can reject such wondrous magnificence? Not even God could find fault in such a being.”).
84 For example, the right to attend public, private and professional schools with white citizens required blacks and other minorities to expand their minds beyond the limited legal imagination that obviously operates in legal doctrines like Bradwell v. Illinois, 83 U.S. 130 (1872); The Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896).
85 See generally, e.g., Rick Bragg, Racism Wins in Small Town in Texas, St. Petersburg Times, Aug. 15, 1993, at 1A.
Vidor’s facade of racial moderation melted. Simpson and DecQuir received death threats. The town received threats that the housing project would be firebombed and the mayor killed if the black men didn’t leave.
It was too much for DecQuir. He started making plans to leave in late July. That left Simpson, who felt he had a moral obligation to stay. But things just got worse.
Id.
86 See Berman, supra note 58, at 3 (“Language is viewed as the systematic integrity of a structure of phonetic differences, rather than as an aggregation of terms (words) each corresponding to a component of objective reality (things).”); Gayatri Chakravorty Spivak, Translator’s Preface, in 4 Jacques Derrida, Of Grammatology (Gayatri Chakravorty Spivak trans., 1976). Derrida writes:
Structuralism is an attempt to isolate the general structures of human activity. Thus, the structuralism I speak of is largely the study of literature, linguistics, anthropology, history, socio-economics, psychology. A structure is a unit composed of a few elements that are invariably found in the same relationship within the ‘activity’ being described. The unit cannot be broken down into its single elements, for the unity of the structure is defined not so much by the substantive nature of the elements as by their relationship.
Id.
87 See Allan C. Hutchinson, Inessentially Speaking (Is There Politics After Postmodernism?), 89 Mich. L. Rev. 1549, 1550 (1991) (“Deconstruction is an unforgiving and remorseless taskmaster.”).
88 Cf. Christopher Norris, Deconstruction: Theory and Practice 62 (rev. ed. 1991). Norris discusses the unwillingness to challenge categorical thinking or dialectical thinking as a category in order to protect its sovereignty: “[b]ut that way lies madness.” See id. Norris also refers to Phaedrus, who, to avoid revealing his discovery about the limits of dialectical thinking, “leaves the university and suffers (like Nietzsche) a collapse into silence and neurosis.” See id.
89 See generally Calvin Herndon, Sex and Racism in America (Anchor Book 1992) (1965).
90 See Rollo May, The Discovery of Being: Writings in Existential Psychology 16 (1983) (discussing being and non-being). Rollo May argues:
[A true sense of being is] the individual’s “pattern of potentialities.” These potentialities will be partly shared with other persons but will in every case form a unique pattern in each individual. We must ask the questions: What is this person’s relation to his own potentialities? What goes on that he chooses or is forced to choose to block off from this level of awareness something which he knows, and on another level knows that he knows?
Id. at 17.
91 See generally 1 Arthur Schopenhauer, The World as Will and Representation (E. F. Payne trans., 1969).
The world is my representation: this is a truth valid with reference to every living and knowing being, although man alone can bring it into reflective abstract consciousness. . . . Therefore no truth is more certain, more independent of all others, and less in need of proof than this, namely that everything that exists for knowledge and hence the whole of this world, is only object in relation to the subject, perception of the perceiver in a word, representation. Naturally this holds good of the present as well as of the past and future, of what is remotest as well as of what is nearest; for it holds good of time and space themselves, in which alone all these distinctions arise. Everything that in any way belongs and can belong to the world is inevitably associated with this being-conditioned by the subject, and it exists only for the subject. The world is representation.
Id. at 3.
92 See Joel Kovel, White Racism: A Psychohistory 26 (1970) (“[O]ur racism can be considered a kind of bounding process that goes on in American culture as it grows. As we grew more powerful, complex, and variegated, so did we become more racist, the race fantasies serving to define and control what might otherwise have gotten out of hand. Racism belongs then, for all its destructive irrationality, to the regulative aspects of our culture.”); Reginald Leamon Robinson, The Racial Limits of the Fair Housing Act: the Intersection of Dominant White Images, the Violence of Neighborhood Purity, and the Master Narrative of Black Inferiority, 37 Wm. & Mary L. Rev. 69, 72–73 (1995). I stated:
The master narrative of black inferiority means the absolutely dominant or privileged story that defines how blacks win or lose, succeed or fail. This story depends on social mythology and has been previously defined as a ‘preexisting narrative.’ Taking the myth and the story together, the master narrative of black inferiority is a systemic story, whether openly spoken or silently acted upon, that describes, solely on racial terms, how and why whites legitimately hold power over blacks.
Id. (footnotes omitted); Reginald Leamon Robinson, “The Other Against Itself”: Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15, 18 n.4 (1993).
93 Reginald L. Robinson, White Cultural Matrix and the Language of Nonverbal Advertising in Housing Segregation: Toward an Aggregate Theory of Liability, 25 Capital U. L. Rev. 101, 118–25 (1996). I argued that federal courts do not acknowledge that this cultural preference for whiteness operates in literally every text, symbol, and language. See id.; cf. Kovel, supra note 92, at 43–44. Kovel rightly argues:
The one certainty about racism is that it has represented something of extreme importance to Americans. The racial turmoil in our time attests to this, as does the racist thread that is woven into virtually every aspect of American history. . . . Although each person in a society is unique in the detail and fine structure of his life, all share in certain common styles of action or forms of knowing—in this case, certain patterns of racist belief or action. To see culture as the organic total of these shared qualities is to give it a psychological definition. . . . Culture is multi-dimensional and must be seen as the integral of all of the separate points of view that enter into our understanding. . . . [I]n principle no aspect of culture operates independently of any other.
Id. If so, then Title VIII will remain ineffective. Fair Housing Act of 1968, Pub. L. No. 90–284, 82 Stat. 81 (codified as amended at 42 U.S.C. §§ 3601–3631 (1994 & Supp. 1999)). In the end, the Act would not give courts additional tools to end housing discrimination and racial segregation. See generally Robinson, supra.
94 See generally Howard Winant, Racial Dualism at Century’s End, in The House That Race Built: Black Americans, U.S. Terrain 87 (Wahneema Lubiano ed., 1997).
95 Cf. Hernández, supra note 27, at 155–61 (arguing that the color-blindness advocates—e.g., multiracial category proponents—in constitutional jurisprudence undermine the quest for racial justice.).
96 163 U.S. 537 (1896).
97 See, e.g., Herndon, supra note 89, at 6. Herndon writes:
The sexualization of racism in the United States is a unique phenomenon in the history of mankind; it is an anomaly of the first order. In fact, there is a sexual involvement, at once real and vicarious, connecting white and black people in America that spans the history of this country from the era of slavery to the present, an involvement so immaculate and yet so perverse, so ethereal and yet so concrete, that all race relations tend to be, however subtle, sex relations.
Id.; Smith, supra note 30, at 127–28. Smith aptly states that:
They existed because there was rich psychological soil for them to grow in. In the old days, a white child who had loved his colored nurse, his “mammy,” with that passionate devotion which only small children feel, who had grown used to dark velvety skin, warm deep breast, rich soothing voice and the ease of a personality whose religion was centered in heaven not hell, who had felt when mind is tender the touch of a spirit almost free of sex anxiety, found it natural to seek in adolescence and adulthood a return of this profoundly pleasing experience. His memory was full of echoes . . . he could not rid himself of them. And he followed these echoes to back-yard cabins, to colored town, hoping to find there the substance of shadowy memories. Sometimes he found what he sought and formed a tender, passionate, deeply satisfying relation which he was often faithful to, despite cultural barriers. But always it was a relationship without honor in his own mind and region, and the source of profound anxiety which seeped through his personality. Yet the old longing persisted, the old desire for something he could not find in his white life.
Id.; see also Page, supra note 63, at 287 (discussing the increasing pattern of interracial unions out of which children are born).
98 See Smith, supra note 30, at 124 (“Regardless of statistics, this every one knows: Whenever, wherever, race relations are discussed in the United States, sex moves arm in arm with the concept of segregation. There is a union in minds, however unreal in terms of today’s facts, that makes us know that the secret history of race relations in the South, the fears and the dreads, are tied up with the secret habits of southerners. We know too, that there are more than six million people of mixed Negro-white blood in our country and most of us are fairly certain that the stork did not bring them to little cotton field cabins.”); see generally Palmore v. Sadoti, 466 U.S. 429 (1984); Loving v. Virginia, 388 U.S. 1 (1967).
99 See generally Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992); Michael Eric Dyson, Race Rules: Navigating the Color Line (1996).
100 See Cheryl Russell, Middle-Aged Boomers Poised to Clean Up the Mess; Blacks and Whites Work Together in L.A., 4 The Boomer Rep., June 15, 1992 (“As recently as the early 1960s most Americans thought whites had a right to keep blacks out of their neighborhoods. Today, the proportion of Americans holding these overtly racist attitudes has fallen to a tiny minority. Sociological studies show that behind changing racial attitudes is a changing of the guard. Older generations with racist beliefs have been replaced by younger, more tolerant generations.”).
101 See Michael K. Frisby, Black, White or Other, Emerge, Jan. 31, 1996, at 48. Fribsy writes that:
Undeniably, recent years have brought new levels of racial and ethnic diversity. In fact, according to 1995 census figures, the number of non-Whites now stretches to 27 percent of the population and is rapidly growing. The once illegal unions between the races have spread like wildfire—in 1960 approximately 149,000 interracial marriages existed; by 1990 there were almost 964,000, a 547 percent increase. And who can miss the Calvin Klein ads with a bare-chested, white male embracing a nappy-haired, dark-hued woman, or the Guess clothing ad that shows a brother with his hands around the waist of a blond White woman, or the television cameras at the U.S. Open tennis match frequently panning Boris Becker’s wife, Barbara Feltus, who is Black, among spectators in the stands.
Id.
102 See Richard H. McAdams, Epstein on His Own Grounds, 31 San Diego L. Rev. 241, 255 (1994). McAdams explains:
Jim Crow segregation was sustained not merely by specific laws mandating particular forms of discrimination, but by the more general control whites had over governmental power: ‘the ballot, the police force, the courts, and the other instruments of state domination.’ In addition, the white majority wielded the threat of private violence against those who threatened the discriminatory norm.
Id. (footnote omitted); F. James Davis, Who Is Black? 51–80 (1991); id. at 53 (“The system was enforced both by law . . . openly acknowledged.”); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 Wm. & Mary L. Rev. 345, 360 (1995) (“From the 1870s until the 1930s, the Supreme Court actively protected the interests of those who sought to suppress racial minorities through Jim Crow laws and outright violence. In United States v. Cruikshank, the Supreme Court held that Congress was without constitutional authority to criminalize the assault or murder of African Americans by private individuals.”)(footnote omitted); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 353–54 (1991) (“When blacks used firearms to protect their rights, they were often partially successful but were ultimately doomed. In 1920, two black men in Texas fired on and killed two whites in self-defense. The black men were arrested and soon lynched.”).
103 See generally, e.g., Ralph Ginzburg, 100 Years of Lynchings (1988).
104 See Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 290 (1997). Michael Selmi provides:
Following the passage of the historic Civil Rights Acts in the mid-1960s, discrimination began to take on new and more subtle forms, and overt or blatant racial classifications gradually became the exception rather than the rule in legal challenges involving allegedly discriminatory conduct. As a result, since the early 1970s the Court has consistently acknowledged the increasingly subtle nature of discrimination and stated that its task is to remain vigilant in identifying even the most subtle acts of discrimination.
Id. (footnote omitted); see also Robinson, supra note 93, at 122 (“Beneath the friendly façade[,]. . . . [t]hey say many whites don’t see the subtle racism they feel.”) (citing Patrick Boyle, Racial Barriers Beneath Surface, Wash. Times, Sept. 22, 1991, at A17)).
105 See generally, e.g., David Benjamin Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899 (1993); Lawrence, supra note 33; Shannon P. Duffy, “Crack” Sentencing Rules Upheld by Appeals Court; Racial Issues Rejected, Legal Intelligencer, Aug. 25, 1995, at 1.
106 See, e.g., Jennie Kennedy, Lino Graglia of the UT Law School Defends the Hopwood Decision During a Press Conference in the Asian Culture Room of the Texas Union Building, Daily Texan, Sept. 12, 1997, at A5; Dyson, supra note 99, at 3–7 (discussing a white man’s letter about life, race, and affirmative action).
107 See generally, e.g., Adarand Constr. Co. v. Peña, 515 U.S. 200 (1995); Croson v. City of Richmond, 488 U.S. 469 (1989); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); see also Why the Legal Services Corporation Must Be Abolished, Heritage Found. Rep., Oct. 18, 1995, at 1 (“Applicants who scored higher than minority applicants on the civil service exam but were rejected sued the city for reverse discrimination. A U.S. Court of Appeals agreed with the Legal Aid Society of Cincinnati’s position and ruled that the white applicants’ constitutional rights were not violated.”).
108 Cf. Reginald Leamon Robinson, The Impact of Hobbes’s Empirical Natural Law on Title VII’s Effectiveness: A Hegelian Critique, 25 Conn. L. Rev. 607, 624–25 (1993). I wrote:
Under Hegel’s ethical life, it is our ‘natural essence, aim, and object’ to actualize our freedom. This actuality of freedom is not what distinctive human personalities have but is rather what they are. Irrespective of physical traits and prior social conditioning, each person deserves mutual recognition which negates racism. In this sense, Hegel’s ethical life could actualize Title VII’s stated goal.
Id. (footnotes omitted).
109 See, e.g., Patricia Williams, The Alchemy of Race and Rights 44–48, 55–79 (1991) (discussing her experience of being denied access to a store and arguing that a white racist society spiritually murders blacks with a variety of violent and non-violent practices); see generally Mari Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993).
110 See James R. Hackney Jr., Derrick Bell’s Re-Sounding: W.E.B. Du Bois, Modernism, and Critical Race Scholarship, 23 Law & Soc. Inquiry 141, 147–48 (1998) (describing W.E.B. Du Bois’s idyllic countryside setting being disrupted by the racial reality that he was treated differently, thus making him aware of his difference, thus causing him to become different, when a little white girl refused his card “peremptorily, with a glance.”) (citing W.E.B. Du Bois, The Souls of Black Folks 44 (New American Library 1969)); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, in Critical Race Theory: The Cutting Edge 159, 160 (Richard Delgado ed., 1995)[hereinafter The Cutting Edge] (“Kenneth Clark has observed, ‘Human beings . . . whose daily experience tells them that almost nowhere in society are they respected and granted the ordinary dignity and courtesy accorded to others will, as a matter of course, begin to doubt their own worth.’”).
111 See Berger & Luckmann, supra note 2, at 129 (Objective and subjective reality “receive their proper recognition if society is understood in terms of an ongoing dialectical process composed of the three moments of externalization, objectivation, and internalization.”); Abraham H. Maslow, The Farther Reaches of Human Nature 155 (1971) (“As George Lichtenberg said of a certain book, ‘Such works are like mirrors; if an ape peeps in, no apostle will look out.’”); Abraham H. Maslow, Toward a Psychology of Being 7 (2d ed. 1982) (“What kind of world will such [self-fulfilling] people create? Sick people are made by a sick culture; healthy people are made possible by a healthy culture. But it is just true that sick individuals make their culture more sick and that healthy individuals make their culture more healthy.”); cf. Immanuel Kant, Critique of Pure Reason, in The Philosophy of Kant 24, 24 (Carl J. Friedrich ed., 1977). Kant states:
There is no doubt that all our knowledge begins with experience. . . . Therefore in the order of time we have no knowledge antecedent to experience, and with experience all our knowledge begins. Although all our knowledge begins with experience, it does not follow that it all arises out of experience. For it may well be that even our empirical knowledge is made up of what we receive through impressions and of what our own faculty for knowing . . . supplies from itself.
Id.
112 See Steele, supra note 20. Steele argues that if blacks still suffer decline and demoralization while opportunities have increased, then perhaps racial victimization is not “our real problem.” See id. Rather, blacks victimize themselves, and yet blacks cannot admit their role in their own oppression because “we would jeopardize the entitlement we’ve always had to challenge society. . . . So we have a hidden investment in victimization and poverty. These distressing conditions have been the source of our only real power, and there is an unconscious sort of gravitation toward them, a complaining celebration of them.” Id. Perhaps, blacks or other oppressed minorities who cannot imagine themselves ever escaping from poverty or abject inner city life, who associate their experiences with the “white” system, and who have a deep commitment to their racial categories and its accumulated experiences of racial injustice have unconsciously bonded with their oppressors and thus actively co-create an ism-based society even though they openly demand an end to white supremacy. Cf. Kovel, supra note 92, at 191–211 (discussing the ways in which aversive (unconscious) racism operates within the human psychology of whites); Frantz Fanon, The Wretched of the Earth 249–310 (Constance Farrington trans., 1963) (describing the manner in which colonialism and its varied forms of violence and oppression impacted on the psychology of Algerians and Europeans using the theory of reactionary psychosis).
113 powell, supra note 6, at 102. powell writes:
It is this metamorphic realm of everyday experience in which race primarily operates. Thus, attempts to establish and define the total reality or unreality of race via quantitative scientific analysis will necessarily fail—race is an experiential truth and it is a categorical error to attempt to reduce the meanings and functions of race to scientifically verifiable measurements.
Id.
114 See Thomas S. Kuhn, The Structure of Scientific Revolutions 11 (1996) (“Because he there joins men who learned the bases of their field from the same concrete models, his subsequent practice will seldom evoke overt disagreement over fundamentals. Men whose research is based on shared paradigms are committed to the same rules and standards for scientific practice.”).
115 See id. at 52–65.
116 See id. at 66–76.
117 See, e.g., Llewellyn, supra note 47, at 453 (“to classify is to disturb. It is to build emphases, to create stresses, which obscure some of the data under observation and give fictitious values to others—a process which can be excused only insofar as it is necessary to the accomplishing of a purpose.”); Carl M. Cannon, Census Faces Racial Issue, Balt. Sun, Jun. 29, 1997, at 1A (“‘The proposed addition of a multiracial category threatens the accuracy, quality and utility of all federal race and ethnic data-collection efforts and would undoubtedly hinder civil rights,’ said Eric Rodriguez, an official with the National Council of La Raza, a liberal Latino organization.”).
118 Llewellyn, supra note 47, at 453 (“a realistic approach rests on the observation that categories and concepts, once formulated and once they have entered into thought processes, tend to take on an appearance of solidity, reality and inherent value which has no foundation in experience.”).
119 See generally James McBride, The Color of Water: A Black Man’s Tribute to His White Mother (1996).
120 See, e.g., Reginald Leamon Robinson, Teaching From the Margins: Race As A Pedagogical Subtext, 19 W. New Eng. L. Rev. 151, 158 (1997) (“Alas, I shiver at the thought that I am only a black man. Do I have a ‘race’? I don’t think so! It’s all a big joke.”)(footnote omitted)(emphasis removed).
121 powell, supra note 6, at 102 (“Although not susceptible to quantified measurement, race nevertheless shapes our social world in the same real way that experience shapes our perceptions of self and reality.”).
122 See May, supra note 74, at 20 (“Myths are our self-preservation of our inner selves in relation to the outside world. They are narratives by which our society is unified. Myths are essential to the process of keeping our souls alive and bringing us new meaning in a difficult and often meaningless world.”).
123 See Wittgenstein, supra note 32, at 2e-3e, §§1–2. Consider Wittgenstein’s critique of “five red apples.”
Now think of the following use of language: I send someone shopping. I gave him a slip marked “five red apples.” He takes the slip to the shopkeeper, who opens the drawer marked “apples”; then he looks up the word “red” in a table and finds a colour sample opposite it; then he says the series of cardinal numbers—I assume that he knows them by heart—up to the word “five” and for each number he takes an apple of the same colour as the sample out of the drawer.—It is in this and similar ways that one operates with words.—”But how does he know where and how he is to look up the word ‘red’ and what he is to do with the word ‘five’?”—Well, I assume that he acts as I have described. Explanations come to an end somewhere.—But what is the meaning of the word “five”?—no such thing was in question here, only how the word “five” is used.
Id.
124 See, e.g., 1 Theodore W. Allen, The Invention of the White Race: Racial Oppression and Social Control 21–24 (1995) (discussing biological nature of “race” and the social invention of whites); Omi & Winant, supra note 3, at 55 (“[T]here is no biological basis for distinguishing among human groups along the lines of race. Indeed, the categories employed to differentiate among human groups along racial lines reveal themselves, upon serious examination, to be at best imprecise, and at worst completely arbitrary.”).
125 See generally, e.g., Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Miami L. Rev. 127 (1987).
126 Cf. Marriott, supra note 5, at A1. Marriott states that:
[i]ncreasingly, multiracial people are arguing—and many scientists agree—that race is a social construct, not a biological absolute. Many historians and social scientists, said Steven Gregory, a professor of anthropology and Africana studies at New York University, believe that the notion of race was largely invented as a way to assign social status and privilege.
Id.
127 See Michael H. Cohen, A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing, 27 Ariz. St. L.J. 79, 85 (1995). Cohen writes:
A paradigm is a shared set of assumptions about the world, by which individuals define the parameters of their reality and their investigation of this reality. Problems and methods outside the paradigm are denied or explained away. A paradigm gains acceptance when it solves problems more readily than competing paradigms. However, a paradigm can insulate a community from problems outside the paradigm, simply because these problems cannot be stated in the terms the paradigm supplies.
. . .
According to Thomas Kuhn, paradigm shifts exhibit the following steps: awareness of anomaly, observational and conceptual recognition, and finally, change of paradigm categories and procedures, often accompanied by resistance. Kuhn found that those who challenge the old paradigm are either young or new to the field. Being uncommitted to the traditional rules of the old paradigm, they are more “likely to see that those rules no longer define a playable game and to conceive another set that can replace them.”
Id. at 85–86 (footnotes omitted).
128 But see Hernández, supra note 27, at 139–40 (“In fact, multiracial category proponents and the Supreme Court both view the eradication of racial classification as an end in and of itself, rather than a means for achieving racial justice. ‘The truth, however, is that racial justice and colorblindness are not the same thing.’”)(footnote omitted) (citing Jerome McCristal Culp, Jr., Colorblind Remedies and the Intersectionality of Oppression: Policy Arguments Masquerading as Moral Claims, 69 N.Y.U. L. Rev. 162, 162 (1994)).
129 See Stephen Barr & Michael A. Fletcher, U.S. Proposes Multiple Racial Identification for 2000 Census, Wash. Post, July 9, 1997, at A1 (“The Clinton administration yesterday proposed that Americans for the first time be allowed to choose more than one racial category when identifying themselves for the census and other government programs.”).
130 Cf. Georg W.F. Hegel, Science of Logic 71 (A.V. Miller trans. & H.D. Lewis ed., 1989). Hegel writes:
Thus consciousness on its onward path from the immediacy with which it began is led back to absolute knowledge as its innermost truth. This last, the ground, is then also that from which the first proceeds, that which at first appeared as an immediacy. This is true in still greater measure of absolute spirit which reveals itself as the concrete and final supreme truth of all being, and which at the end of the development is known as freely externalizing itself, abandoning itself to the shape of an immediate being—opening or unfolding itself [sich entschliessend] into the creation of a world which contains all that fell into the development which preceded that result and which through this reversal of its position relative to its beginning is transformed into something dependent on the result as principle.
Id.; see also Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime, and the First Amendment, 1987 Wis. L. Rev. 221, 232. Nahmod argues that:
Hegel resurrects the Platonic ideal in the concept of Absolute Spirit but with the crucial difference that Hegel’s Absolute Spirit operates through history. Thus, history itself is moving inevitably toward the ideal of absolute mind. Hegel’s views are a good example of the narratives of the liberation of humanity and the unity of all knowledge.
Id. Absolute spirit and absolute liberty parallel each other. It is the end of all spiritual beings to live unmediated lives, thus knowing themselves through the enlightened moments of Zen’s satori. See Eugen Herrigel, The Method of Zen 45 (R.F.C. Hull trans. & Herman Tausend ed., 1960) (“Satori is a sort of inner perception—not the perception, indeed, of a single individual object but the perception of Reality itself.”).
If a person subscribes to a racial identity on which her sense of being depends, she denies herself a chance to know her true self, a self that defies socially constructed categories, a self that transcends human language, and a self that becomes itself best not by limiting words but by self-evident experience. See Drucilla Cornell, The Philosophy of the Limit 65 (1992) (“The unity of Being and non-being is their ceaseless changing into their opposite, an endless movement of becoming which is the ontological core of all movement and materiality. The interplay of Being and nonbeing signals the presence of the Absolute as the very movement of the interpenetration of oppositional categories. Nothing is, unless it comes to be in and through the circle of Absolute Knowledge.”).
131 See Page, supra note 63, at 285 (“That was the story of Tiger [Wood]’s life; either he was too black or he was not black enough. But in the spring of 1995 when he became, at age nineteen, the fourth ‘black’ golfer to play the Masters Tournament in Augusta, Georgia, while still enrolled in Stanford, he refused to settle for that label. It was an injustice to all of his other heritages, he said, to call him simply ‘black.’ He was not ashamed to be black. But it was not all that he was proud of, either.”).
132 Cf. Perez v. G.W. Sharpe, 198 P.2d 17, 26 (1948). The court stated:
Respondent maintains that Negroes are socially inferior and have so been judicially recognized . . . , and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races. If they do, the fault lies not with their parents, but with the prejudices in the community and the laws that perpetuate those prejudices by giving legal force to the belief that certain races are inferior.
Id.
133 See generally Hernández, supra note 27.
134 See id. at 101–03.
135 See id. at 103–04.
136 See id. at 106–15.
137 See id. at 115–39.
138 See Hernández, supra note 27, at 139–56.
139 See id. at 156–61.
140 See id. at 161–71.
141 Id. at 171.
142 See Plessy v. Ferguson, 163 U.S. 531, 551–52 (1896). Justice Brown asserted that:
[l]egislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. . . . If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.
Id.
143 See Deborah Waire Post, Reflections on Identity, Diversity, and Morality, in The Cutting Edge, supra note 110, at 419, 419–20.
144 Cf. Ronald M. Dworkin, Liberal Community, 77 Cal. L. Rev. 479, 501 (1989). Dworkin explains that in an integrated liberal community:
[h]e will count his own life as diminished—a less good life than he might have had—if he lives in an unjust community, no matter how hard he has tried to make it just. That fusion of political morality and critical self-interest seems to me to be the true nerve of civic republicanism, the important way in which individual citizens should merge their interests and personality into political community.
Id.
145 See Omi & Winant, supra note 3, at 20 (“[B]eginning around 1970, ethnicity theorists developed a conservative egalitarian perspective which emphasized the dangerous radicalism and (in their view) antidemocratic character of ‘positive’ or ‘affirmative’ antidiscrimination policies. State activities should be restricted, they argued, to guarantees of equality for individuals.”).
146 See generally, e.g., Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896); Strauder v. West Virginia, 100 U.S. 303 (1879); Buchanan v. Warley, 245 U.S. 60 (1917); Corrigan v. Buckley, 271 U.S. 323 (1926); Shelley v. Kraemer, 334 U.S. 1 (1948); Loving v. Virginia, 388 U.S. 1 (1967); Brown v. Bd. of Educ., 347 U.S. 483 (1954); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
147 See 163 U.S. 537, 551 (1896). The Court stated that:
[i]f the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and voluntary consent of individuals. . . . “This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate.”
Id. Although I observe this point, I disagree with the Plessy holding. My point, however, is simple: How we think, regardless of its underlying merits, informs how we understand ourselves and how we evaluate our experiences.
148 The major impetus for the Civil Rights Act of 1968, The Fair Housing Act, was the urban riots following the assassination of Martin Luther King, Jr. See Leland B. Ware, New Weapons for an Old Battle: The Enforcement Provisions of the 1988 Amendments to the Fair Housing Act, 7 Admin. L.J. Am. U. 59, 74 (1993) (“Dr. Martin Luther King, Jr.’s assassination on April 4, 1968, and the resulting wide-spread civil unrest, provided the final impetus needed to push H.R. 2516 out of the House Rules Committee.”).
149 Civil Rights Act of 1991, Pub. L. No. 102–166, §§ 104, 109(a) Stat. 1071, 1074, 1077.
150 See, e.g., Debbie Goldberg, Who Makes the Cut?, Wash. Post, July 27, 1997, at R4. Goldberg writes:
The data are clear: Tenure rates for women and minorities are much lower than those for white males. According to the annual report of the American Council on Education’s Office of Minorities in Higher Education, in 1993 the tenure rate for white men in tenure track positions was 78 percent, compared with 61 percent for white women and 62 percent for all minority candidates. Women in all categories fared worse than men: African American men and women had tenure rates of 63 percent and 58 percent respectively; Hispanic men and women had tenure rates of 66 percent and 57 percent respectively; Asian American men and women had tenure rates of 67 percent and 52 percent respectively; and American Indian men and women had tenure rates of 72 percent and 49 percent respectively.
Id.. See generally Beth A. Bourassa, Small Businesses Need Policy Against Sexual Harassment, 25 Cap. District Bus. Rev. (Albany N.Y.) 38 (1998) (discussing the current court ruling on sexual harassment claims that were brought against small businesses).
151 Title VIII of the Civil Rights Act of 1968 (“Fair Housing Act”), 42 U.S.C. §§ 3601–3631 (1968 & Supp. 1994).
152 See, e.g., Massey & Denton, supra note 67, at 4; Lisa J. Laplace, The Legality of Integration Maintenance Quotas: Fair Housing or Forced Housing?, 55 Brook. L. Rev. 197, 198-99 (1989).
153 See, e.g., Massey & Denton, supra note 67; Galen Martin, Desegregation Project Links School Resegregation, Gov’t Housing Policies, Mich. Citizen, Feb. 15, 1997, at B5 (“In February 1995, [Assistant Secretary Roberta] Achtenberg conceded that ‘the federal government, including HUD, has a long history of having precipitated and perpetuated housing discrimination.’ She detailed the ways government programs had increased segregation and said, ‘fair housing law has been weak and inadequate.’”); Karl Taeuber, The Contemporary Context of Housing Discrimination, 6 Yale L. & Pol’y Rev. 339, 344–45 (1988).
154 See, e.g., United States v. Gilbert, 884 F.2d 454, 455 (9th Cir. 1989) (“Gilbert told a college newspaper reporter that there were ‘seventeen niggers’ in Kootenai County, the county in which he resided, and that by the time his group was through there wouldn’t be any.”); Perez v. G.W. Sharpe, 198 P.2d 17, 25 (Cal. 1948) (“The effect of race prejudice upon any community is unquestionably detrimental both to the minority that is singled out for discrimination and to the dominant group that would perpetuate the prejudice. It is no answer to say that race tension can be eradicated through the perpetuation by law of the prejudices that give rise to the tension.”).
155 See Fair Housing Act of 1968, 42 U.S.C. § 3631 (1988 & Supp. 1996) (discussing felony and misdemeanor penalties). See also Civil Rights Act of 1991, Pub. L. No. 102–166, § 102(b)(2), 105 Stat. 1071, 1073 (relating to damages and penalties).
156 See, e.g., Peter Noel, A Question of Murder, Village Voice, Aug. 4, 1998, at 28 (describing the death of Rodney Williams, a black man, killed by white supremacists who “dragged [him] behind a pickup truck by his ankles until his arm and head were torn off.”).
157 Cf. Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
158 See, e.g., Overton McGehee, Official’s Bluster on Racial Labels Defined Life for Many Virginians, Richmond News Leader, May 12, 1991, at A1. McGehee interviewed Dr. J. David Smith who was writing a book on Dr. Walter Ashby Plecker, a leader in the eugenic movements. See id. From 1912 to 1946, Dr. Plecker was Virginia’s Registrar of Vital Statistics and a founding member of the Anglo-Saxon Clubs of America, and he used Virginia’s Race Integrity Act to enforce the “one-drop” rule, to protect the “purity” of the Caucasian race and to deny blacks or coloreds all the rights that whites enjoyed. See id. In this position, Dr. Plecker determined a person’s racial classification. On one occasion, Dr. Plecker wrote:
This is to give you warning that this is a mulatto child and you cannot pass it off as white. A new law passed by the last legislature says that if a child has one drop of Negro blood in it, it cannot be counted as white. You will have to do something about this matter and see that this child is not allowed to mix with white children. It cannot go to white schools and can never marry a white person in Virginia.
Id.
159 See Joseph Campbell with Bill Moyers, The Power of Myth 8 (Betty Sue Flowers ed., 1988) (“[Marriage is] primarily a spiritual exercise, and the society is supposed to help us have the realization. Man should not be in the service of society, society should be in the service of man. When man is in the service of society, you have a monster state, and that’s what is threatening the world at this minute.”).
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