Kimberlé Crenshaw, "Race, Gender, Inequality and Intersectionality"

Summary

Kimberlé Crenshaw's lecture delves into the intersections of race, gender, and law, focusing on how the concept of "post-racialism" is contested within contemporary society. She begins by discussing the Black Lives Matter movement as a form of resistance against racial narratives perpetuated by current legal frameworks. Crenshaw challenges the notion of "post-racialism" and explores how legal interpretations of colorblindness fail to address underlying racial inequalities. Through critical race theory and the historical context of racially biased systems, she argues that colorblind policies often reinforce racial biases rather than dismantle them. Throughout the talk, Crenshaw also highlights the role of gender in shaping racial justice discourses, emphasizing the continued importance of analyzing intersecting forms of discrimination in creating meaningful societal change.

Highlights

• Kimberlé Crenshaw challenges the notion of post-racialism, emphasizing ongoing racial inequalities. 🚫
• She identifies Black Lives Matter as a discourse of resistance against racial reproduction in a so-called post-racial era. 🗣️
• Crenshaw explores how colorblindness in law is used as a facade for racial neutrality, which often conceals deeper biases. 🔍
• The lecture delves into the historical context of legally mandated racial segregation and its modern equivalents. 📜
• Crenshaw discusses the impact of student activism on Critical Race Theory. 🎓
• She argues the problematic nature of framing racial equality as symmetrical treatment, which can ignore systemic disparities. ⚖️
• Gender roles within racial justice movements are examined for their impact on legal and political strategies. 👥

Key Takeaways

• Post-racialism remains a contentious term, often implying a misleading narrative that race-related issues are resolved. 🎭
• Colorblind legal policies often reinforce existing racial biases rather than eliminating them. 🏛️
• The Black Lives Matter movement serves as a discourse challenging existing racial narratives. ✊
• Critical Race Theory plays a crucial role in questioning the neutrality of legal frameworks and knowledge production. 📚
• Historical concepts like "colorblindness" continue to influence contemporary legal interpretations, often undermining racial equity. ⏳
• Race and gender are interconnected in shaping discussions and policies around racial justice. ⚧️
• Affirmative action debates highlight the discrepancies in addressing historical racial injustices. ⚖️

Overview

In her enlightening talk at Brown University, Kimberlé Crenshaw takes center stage to dissect the complex layers of race, gender, and legal interpretations that perpetuate inequality. She dives deep into how the notion of 'post-racialism' is often misused to suggest that racial issues are a thing of the past, even when they persist in contemporary society. Through the lens of Critical Race Theory, Crenshaw challenges the concept of colorblind policies, which claim to be neutral but frequently uphold systemic racial biases.

Crenshaw passionately argues that the Black Lives Matter movement represents a critical discourse of resistance, pushing back against historical and ongoing racial narratives. She emphasizes the importance of acknowledging how race and gender intersect, influencing both individual experiences and broader social policies. The discussion also highlights the significant contributions of student activism in the development of Critical Race Theory, demonstrating the power of grassroots mobilization in shaping intellectual discourses.

The lecture further explores the role of legal frameworks in perpetuating racial inequality, particularly through the concepts of colorblindness and affirmative action. Crenshaw critically reviews historical cases like Plessy v. Ferguson, illustrating how past legal decisions continue to shape modern racial dynamics. By dissecting these complex intersections, Crenshaw provides valuable insights into how legal and societal structures must evolve to achieve true racial and gender equality.

Chapters

• 00:00 - 00:30: Introduction to "Race, Gender, Inequality, and Intersectionality" The chapter begins with an acknowledgment of contemporary patterns of racial inequality, emphasizing both ideological and material dimensions. The focus is on how the law frames these racial issues, starting with the influential and resonant phrase 'Black Lives Matter'.
• 00:30 - 01:00: Framing Black Lives Matter within Legal Discourse The chapter titled 'Framing Black Lives Matter within Legal Discourse' explores the notion that the idea of Black Lives Matter should be as uncontested as the notion that white lives matter. The fact that it remains a contested issue indicates ongoing racial projects. The chapter aims to position Black Lives Matter as a discourse of resistance, framing it within legal terms.
• 01:00 - 01:30: Questioning Post-Racialism and Its Mechanisms The chapter explores the concept of post-racialism, questioning how race continues to be reproduced despite claims of a post-racial society. It investigates the mechanisms that support post-racial narratives, and examines the role of law in establishing the narratives contested by the Black Lives Matter movement. The chapter aims to broaden the conversation by introducing additional themes beyond the legal perspective.
• 01:30 - 02:00: The Role of Students and Critical Race Theory The chapter discusses the ongoing political efforts and highlights the impact of past student activism. It focuses on framing the discussion around critical race theory, although it doesn't delve into the full historical account or performance of the theory.
• 02:00 - 02:30: Gender and Racial Justice Discourses The chapter explores the historical context and evolution of gender and racial justice discourses, focusing on the challenges and transformations in knowledge production at universities. It highlights earlier generational efforts to contest and interrogate existing knowledge paradigms and emphasizes the importance of inclusivity in intellectual engagement and the rationalization of knowledge systems.
• 02:30 - 03:00: The Ideological Frame of Colorblindness in Law The chapter titled 'The Ideological Frame of Colorblindness in Law' focuses on the persistent efforts to reform society by challenging the justifications for racial stratification. The narrative places these efforts within the context of the Civil Rights Movement, highlighting their importance alongside movements for voting rights and economic justice. It underscores that arenas like courtrooms, elections, and hiring offices are central to this contestation.
• 03:00 - 03:30: The Theory of Racial Neutrality and the 14th Amendment The chapter titled 'The Theory of Racial Neutrality and the 14th Amendment' focuses on critical race theory, emphasizing the significant role students played in advancing discussions around this topic. It also examines the influence of gender on shaping racial justice discourses, suggesting a framework based on contemporary contexts.
• 03:30 - 04:00: Critique of Colorblindness as a Social Theory The chapter, titled 'Critique of Colorblindness as a Social Theory,' discusses the concept of post-racial pragmatism, particularly in the context of President Obama's initiatives towards racial justice. It critiques the notion of colorblindness in addressing racial issues and suggests that Obama's efforts, though aiming for racial justice, are limited by the constraints of post-racial pragmatism. This involves a balancing act of delivering a racial justice project while maintaining a pragmatic approach often seen as assimilationist.
• 04:00 - 04:30: Colorblindness and Its Impact on Social Policies The chapter discusses the concept of colorblindness and its influence on social policies. It highlights how current ideological and political limitations hinder progressive approaches to these policies. Additionally, it underlines the gender dimensions inherent in these issues. The speaker encounters some technical difficulties with their presentation but continues to provide insights into the topic despite these setbacks.
• 04:30 - 05:00: Symmetrical Treatment as a Notion of Racial Equality This chapter delves into the concept of 'color blindness' in the context of racial equality. The speaker presents color blindness as an ideological framework that performs specific functions in society. The notion is introduced through what is termed a 'color blind Museum,' with various examples of how color blindness has been expressed and understood. While the transcript provides a brief overview, it sets the stage for a deeper exploration of how color blindness relates to ideas of racial equality and political ideology.
• 05:00 - 05:30: The Concept of Post-Racialism and Big Event Argument This chapter explores the concept of colorblindness particularly in the context of law, where it is interpreted as a theory of racial neutrality. The objective of colorblindness in legal frameworks is to achieve equality by implementing neutrality, suggesting that the absence of racial consideration leads to fair treatment. The discussion involves how colorblindness has been talked about and applied historically within legal settings.
• 05:30 - 06:00: Disparities in American Society and the Big Event Argument The chapter discusses the concept of racial neutrality in the context of American society, particularly with respect to the 14th Amendment. It explains that racial neutrality involves being blind to race, meaning not acknowledging, giving preference, or discriminating on the basis of race. This idea is considered one theory of achieving racial equality, and it is noted that a majority of Supreme Court justices view racial neutrality as a mediating principle of the 14th Amendment.
• 06:00 - 06:30: The Historical Denial of Racial Subordination Continuity The chapter discusses the interpretation of the 14th Amendment by the current justices, particularly its association with color blindness as a constitutional principle. It touches upon the idea that color blindness is not just a legal concept but also a social theory regarding race and racism. The author suggests that by the end of the discussion, the perspective on color blindness and its role in legal and social contexts might become clearer and potentially controversial.
• 06:30 - 07:00: Competing Ideologies on Racial Inequality The chapter explores different ideologies on racial inequality, emphasizing various conceptualizations of race. It begins by highlighting the common simplification of racism to decisions based on skin color and criticizes this narrow view. Instead, it suggests that race could be understood as a historical construction intertwined with power dynamics, signaling the complexity and depth of racial issues beyond mere skin color. The chapter invites a broader discourse on how race and racism are defined and perceived, suggesting that understanding these concepts is vital to addressing racial inequality effectively.
• 07:00 - 07:30: Martin Luther King's Perspective on American Society This chapter delves into Martin Luther King's perspective on American society, emphasizing a relational rather than merely skin color-based view on race issues. It critiques the concept of color blindness, suggesting that ignoring race requires a static notion to ignore, similar to the paradox of not thinking about elephants despite knowing what they are. The narrative suggests that color blindness involves a kind of mental gymnastics within legal frameworks, which is revealed to be impractical or impossible to fully implement.
• 07:30 - 08:00: Justice Scalia's Response to Affirmative Action The chapter discusses Justice Scalia's response to affirmative action, highlighting his criticism of policies framed as preferential treatment. The term 'color blindness' is mentioned in the context of denouncing these social policies, suggesting an emphasis on equal treatment without consideration of race. The transcript indicates that these concepts are central to the discourse on affirmative action and traditional forms of social policy.
• 08:00 - 08:30: Constitutionalizing the Status Quo The chapter titled 'Constitutionalizing the Status Quo' discusses the concept of color blindness in the context of anti-discrimination interventions. It posits that neutrality is equated to being color blind, and any deviation from this neutrality is seen as preferential treatment. The chapter highlights how paying attention to race in order to address inequalities is considered preferential. Thus, color blindness is depicted as a method to define what is considered a neutral baseline in societal interventions.
• 08:30 - 09:00: Colorblindness and the 19th Century Perspective The chapter discusses the concept of racial equality in the context of symmetrical treatment, where race is not used as a basis for any social policy. This notion of equality, where people are treated symmetrically, is highlighted as not being a new idea but one that dates back over a century.
• 09:00 - 09:30: Segregation Under the 14th Amendment The chapter discusses how the concept of equality was originally used to undermine the first reconstruction era, and it argues that the same undermining is happening today. It touches on the idea of post-racialism and how it has been embraced in contemporary times.
• 09:30 - 10:00: Justice Harland's Colorblind Ideal In this chapter, the concept of 'big events' is discussed, particularly in the context of racial moments in history. The Civil War is given as an example of a 'big event' that significantly transformed the nature of racial society. The chapter appears to delve into how such events are used as markers to distinguish between periods in racial history.
• 10:00 - 10:30: Justice Harland's View on Racial Domination Justice Harland's view highlights the misconception that post-Civil War racial segregation was unrelated to the legacy of slavery. Instead, it argues that segregation was often dismissed as cultural customs. The significant events like the Civil War and the creation of the 13th and 14th Amendments were frequently misused to obscure ongoing racial oppression, framing it as an issue other than what black communities recognized as its true nature. This misunderstanding extended into modern events, exemplified by the election of Barack Obama, pointing out a continued misinterpretation of racial issues.
• 10:30 - 11:00: Contemporary Consequences of Plessy This chapter discusses the notion of a 'post-racial' society, particularly in the context of the election of a significant political figure, which many believed signaled the end of racial barriers. The narrative suggests that the perceived shattering of a 'glass ceiling' led to the assumption that there are no longer any valid justifications for continued racial disparities among African Americans in society. This chapter thus explores the contemporary consequences following this perceived shift in societal attitudes towards race following major political events.
• 11:00 - 11:30: Richmond vs. Croson Case on Contracting and Symmetry The chapter explores the concept of a 'post-racial' society, questioning when exactly society transitioned from a racially biased history. It delves into the idea that such a transition would be noticed through changes in the demographics of powerful and marginalized groups, such as those in the White House, Senate, boardrooms, prisons, and homeless populations. The chapter uses these examples to scrutinize the claim of a post-racial era.
• 11:30 - 12:00: Affirmative Action Under Colorblindness Doctrine The chapter discusses how the concept of affirmative action has evolved under the doctrine of colorblindness. It highlights the shift from being closely tied to addressing racial inequality to a broader and more ambiguous application, prompting questions about the current understanding of racial issues in the historical context. The notion of post-racialism is mentioned, indicating it could be considered a variation of race consciousness or an evolution of racial discourse.
• 12:00 - 12:30: Education, Diversity, and Affirmative Action The chapter discusses the concept of postcolonialism, emphasizing that it does not signify the complete opposite of colonialism but rather a variation where certain colonial dimensions continue to exist. The discussion criticizes the common perception of post-racialism, arguing that it is often treated as the complete opposite of a racial society, rather than as a nuanced continuation with remnants of racial issues still persisting.
• 12:30 - 13:00: The University of California vs. Bakke Case The chapter titled 'The University of California vs. Bakke Case' discusses the ongoing debate about the meaning and implications of the term 'postracial.' The speaker argues against the notion that a postracial society is one where racial issues are resolved or irrelevant. Instead, they suggest that race continues to play a significant role in shaping societal dynamics, and that claiming we have achieved a postracial status overlooks the complexities and continuing relevance of race. The case serves as an example of how race still matters in legal and societal contexts, questioning the idea of a 'mission accomplished' regarding racial equality.
• 13:00 - 13:30: Justifications of Affirmative Action The chapter 'Justifications of Affirmative Action' delves into contrasting ideologies concerning contemporary racial inequality. It discusses the notion of broad competition between these ideologies, where one frames the existing disparity as a societal problem needing repair. The concept of obligation or reparation as a response to this disrepair is also highlighted.
• 13:30 - 14:00: Media's Representation of Affirmative Action The chapter explores the ongoing demand for affirmative action and similar interventions to address racial inequalities and redistributions within society. It delves into the concept of 'repair', akin to reparations, as a solution to the unnatural and structured social and racial problems that exist, and highlights the legitimacy of policies designed to tackle these issues.
• 14:00 - 14:30: Anti-Affirmative Action Debates in the Post-Racial Context The chapter titled 'Anti-Affirmative Action Debates in the Post-Racial Context' discusses the arguments against affirmative action that reject the notion of reparations. It challenges the idea that society owes a debt to historically marginalized groups. Instead, it presents the viewpoint that American society is a level playing field, despite existing disparities and racial patterns.
• 14:30 - 15:00: Abigail Fisher Case and Reverse Discrimination The chapter discusses the Abigail Fisher case in the context of reverse discrimination, focusing on different perspectives on the sources of racial disparities. It highlights two competing frames regarding racial disparities: one that sees them as a natural outcome without any manufactured influence and another that suggests a need for alteration or redistribution to address these disparities. The chapter also alludes to historical narratives, specifically referencing Martin Luther King's remarks during the March on Washington, contextualizing contemporary debates within a historical framework.
• 15:00 - 15:30: The Mismatch Theory and Media Representation Bias The chapter titled 'The Mismatch Theory and Media Representation Bias' addresses the common perception and portrayal of Martin Luther King Jr.'s iconic 'I Have a Dream' speech during the March on Washington. The chapter highlights that many people focus only on the colorblind aspect of the speech, particularly the hope that children will be judged by their character and not their skin color. This focus tends to overshadow more profound and comprehensive parts of the speech that are often overlooked or not celebrated, thereby showcasing a media bias in representation.
• 15:30 - 16:00: Critique of Affirmative Action and its Impact The chapter titled 'Critique of Affirmative Action and its Impact' explores a deep critique of American society, focusing on the shortcomings of the status quo and the failure to fulfill the promises made during the Civil War and through the 14th Amendment. The speech discussed in this chapter is described as a powerful indictment demanding immediate and effective intervention, reflecting Martin Luther King Jr.'s broader struggle for civil rights and equality. The discussion highlights the need for a reevaluation of the approaches to achieving these goals, emphasizing a departure from complacency and towards actionable change.
• 16:00 - 16:30: End Remarks and Video Conclusion The chapter titled 'End Remarks and Video Conclusion' discusses the state of society perceived as being in disrepair. A significant part of the chapter involves referencing a quote by Justice Antonin Scalia, particularly related to a case on affirmative action. The discussion hints at Scalia's stance over a 30-year span, essentially arguing that nothing is owed, thereby emphasizing a point on societal obligations and reparations.

Kimberlé Crenshaw, "Race, Gender, Inequality and Intersectionality" Transcription

• 00:00 - 00:30 made um so we already heard about both the ideological and material dimensions of contemporary patterns of racial inequality I'm going to talk about the way that law frames those questions um now let let's just pause for a moment and acknowledge that the frame black lives matter could simply be an
• 00:30 - 01:00 observational fact um just part of a background reality uh no more political or no more contested than the idea that white lives matter right um the fact that it is a contested frame tells us that there's still a project going on around Race So what I want to do is frame some part of that project in legal terms um I want to identify black lives matter as a discourse of resistance um
• 01:00 - 01:30 that puts into question the way that race continues to be reproduced in this contemporary period of so-called post-racialism so effectively I'm questioning what is pro post-racialism what are its mechanisms what role does law play in establishing the basic background narrative that black lives matter is trying uh to contest now in doing this I also want to bring um into the conversation um not just the um
• 01:30 - 02:00 ongoing efforts that are underway in the political sphere but I also want to bring into conversation um some of the product of student activism from the past so in particular I want to talk um about and frame these comments as comments around uh critical race Theory so um I don't really have the time to tell the full story of critical race Theory and perform it but I'm going to
• 02:00 - 02:30 ask you to take into consideration that most of what I'm talking about actually came out of the earlier Generations um interrogation of contestation of the terms of knowledge production in universities and the idea was that knowledge production access to knowledge production the ability to create um a a group of of of intellectuals who are actually engaging in the process of rationalizing our our
• 02:30 - 03:00 ongoing efforts to uh reform Society of contesting the ways in which racial stratification was justified that project was ever so much a part of the Civil Rights Movement as Voting Rights was or as economic Justice is so recognizing that these places are as contested as courtrooms as um elections as uh hiring offices that was a central part of
• 03:00 - 03:30 critical race Theory um and it's a central part that I want to um hold up partly because students had everything to do um with making that project actually happen um the second thing that I want to also uh talk about um is the role of gender in the um domestication of racial Justice discourses and I want to frame that um out of the temporary
• 03:30 - 04:00 effort to create a racial Justice project that I call post-racial pragmatic um it is uh President Obama's attempts to deliver uh at last some kind of racial Justice intervention uh but my argument is going to be that that effort to deliver it has been constrained by a performance of post-racial pragmatism one might call it assimilationist one might call it um simply an effort uh to deliver something on Race within the
• 04:00 - 04:30 existing ideological and political constraints rather than trying to push at those constraints I'm going to argue that it has particular uh gender Dimensions as well um so let me get on with this I'm having just a little difficulty pushing these through so I might just keep talking until the slides catch up with me or until someone comes up and saves me um as they seem me floundering here trying
• 04:30 - 05:00 to okay um so um so we've been talking about color blindness in and out um of the day and I want to talk about uh color blindness largely as an ideological frame that does uh a certain kind of work um I call this a color blind Museum I'm going to give you uh some snapshots of color blindness as they have been articulated
• 05:00 - 05:30 in the law throughout history now our first question might be what actually is colorblindness and we've been talking about it throughout the day in several different ways I want to uh provide uh more or less a a schematic of color blindness as it plays out in the law so in the law when we encounter color blindness we encounter it first as a theory of racial neutrality um the idea being that equality requires neutrality
• 05:30 - 06:00 and neutrality is constituted by being blind to race by not acknowledging Race by not um by not uh giving preference on the basis of race or by not discriminating on the basis of race so it is one theory of what racial equality is which is racial neutrality um it is also thought to be the mediating principle of the 14th amendment by almost the majority of the justices on the Supreme Court namely if you ask what
• 06:00 - 06:30 does the 14th Amendment require four of our current justices will say the 14th amendment requires color blindness now that might not be necessarily controversial to you yet but I hope by the time I get done you will be a gas at my telling you that color blindness is just about to become the mediating principle of the Constitution um it is also a social theory of race and racis so to be colorblind as a response to
• 06:30 - 07:00 race and racism you have got to boil down racism to decisions based on the basis of race and you have to have a definition of race which is largely a static definition of race right usually it's framed as skin color as opposed to other ways one might think about race one might think about race as the historicized vessels um of racialized power one might think of of race as
• 07:00 - 07:30 relational as opposed to Simply skin color so to boil down color blindness into uh ignoring race you have to have something static to ignore right it's somewhat like don't think about elephants you have to know what elephants are in order not to think about them if you even thought you could think about something that you're not supposed to think about um so so color blindness performs this kind of mental gymnastics in the law which of course um is impact possible to actually play out
• 07:30 - 08:00 again I hope I can uh prove that to you um color blindness also um is used to denounce a certain kind of uh uh social policy so I you would know those so social policies by the terms that they're used to frame them so used to denounce something called preferential treatment um used to denounce affirmative action even now used to denounce traditional kinds of
• 08:00 - 08:30 anti-discrimination interventions the idea being that all of these things are departures from some kind of neutral Baseline and when you depart from a neutral Baseline you are actually engaging in preferential treatment what is neutral neutral is color blind what is not neutral what is preferential what is preferential is paying attention to race in order to do something right so color blindness tells us what the neutral Baseline is um and finally color blindness helps us Define
• 08:30 - 09:00 racial equality as symmetrical treatment so if we've decided that race cannot be the basis for which any kind of social policy uh can uh be used to pursue then essentially we're creating an idea that equality is achieved when we treat people in a symmetrical way and so what I hope you'll be able to see in a second that particular notion of equality is not new um it's over a century old
• 09:00 - 09:30 and it was actually a conception of equality that was used to undermine the first reconstruction and I will argue it is essentially doing the same thing now so let me see if I can get through it in time for you to say absolutely right um so um we we live in a in a time where um many people have used the term uh post-racialism and have embraced the
• 09:30 - 10:00 idea that what we witnessed was what I call a big event that uh marks the difference between sometime in the past and the time now big adventism has often been used to distinguish between different kinds of racial moments so the Civil War was a big event um which around which some people said the nature of our racial Society has been completely trans transformed by this big
• 10:00 - 10:30 event right so um blacks might experience racial segregation um after the Civil War but that has nothing to do with slavery um that just has something to do with our cultural habits so the big event of the Civil War the big event of the 13th and 14th Amendment were often used to deny the continuity of racial subordination to say that it was about something other than what most black people knew it was actually about so um the election of Barack Obama is
• 10:30 - 11:00 sometimes the big event um that says the day before he was elected maybe some of the stuff that was going on had something to do with race but the day after he's elected now we have gone into a post-racial moment and everything that is underneath the idea of uh the glass ceiling being shattered suggests that there are no more excuses for African-American disparity anywhere else throughout Society so it's a basic a big
• 11:00 - 11:30 event argument that's used to say we are postracial in the sense that we used to be racial now we're beyond that now one of the questions is well when people say post-racial um what exactly is the moment that we passed from that history in which looking at the White House we could say that was a product of racism or looking at the senate or looking at who's in boardrooms or looking at who's in prisons or looking at who's homeless when did we go through that moment where
• 11:30 - 12:00 at one point we could see that it had something to do with racial antecedence and now it has nothing to do with it at all so it's a it's a question to um ask for definition about what we're assuming the current situation is with respect to the historical dimensions of uh racial inequality now I'll just pause for a minute to say there are any number of ways in which we might think about post-racialism we might think of it as just a subvariant of being a race
• 12:00 - 12:30 Society like when we say postcolonialism we don't think that a postcolonial society is the exact opposite of a colonial society we see it as a subvariant with certain dimensions of colonialism still playing out um we don't tend to hear people talking about post-racialism as a subvariant of a racial Society what people tend to do is try to talk about it as its opposite as as its denial so I'm going to push an
• 12:30 - 13:00 argument that what is being contested is the nature of what we mean when we say postracial and obviously I'm going to make an argument that postracial is not mission accomplished um it is not um the idea that we are all now uh working together and it's not the idea that race no longer uh Bears any particular um uh definitional um uh content for understanding how our society works now what I will say is um at issue is a
• 13:00 - 13:30 broad competition uh between two different competing ideologies about how to capture and whether to intervene in contemporary racial inequality so um I've got two quotes up here um one the first one uh frames the ongoing disparity in terms of a society in disrepair something that has to be fixed um the idea that something is owed um
• 13:30 - 14:00 that has not been realized the idea that there is a continuing demand for some kind of intervention to shape alter redistribute racial Goods in society and also racial harms um it is the idea of repair some would see it as the core idea of the idea of reparations right so there is a problem and that problem is not natural that problem um is uh a problem around which some kind of expected policy um is uh legitimate to
• 14:00 - 14:30 try to dismantle the second position is a direct repudiation of that idea of repair it's an idea that nothing is owed um nothing is lost no one owes anyone anything um there are no debtors and there are no creditors what we have is just American society there may be huge disparities across American society there may be racial Iz patterns of this
• 14:30 - 15:00 disparity but it's not the product of anything that has been constructed or anything around which a claim can be made for alteration or redistribution right so those are the two competing frames does anyone recognize um the source of either one of these frames what's the first one Martin Luther King when March on Washington so some of you probably don't realize that this was something that Martin Luther King said
• 15:00 - 15:30 at the March on Washington probably because you've heard the endless loop of the one thing that we are all taught that he said which was what I had a dream I had a dream that one day my children would be judged by the content of their character not the color of their skin so most people hear the colorblind evocation of that speech that's what gets celebrated every year um and every February we hear it over and over we don't hear the Deep
• 15:30 - 16:00 indictment of American society that he also delivered in fact for the most part the speech was an indictment of the status quo it was an indictment of the failure to make good of the promises of the Civil War the 14th Amendment it was a demand for immediate and effective intervention this last part was the flourish at the end but the flourish at the end has more or less served as the basic marker um of Martin Lu the king when in fact there was this deep sense
• 16:00 - 16:30 that this is a society in disrepair what about the other um quote who's that from okay so I'm hearing some Whispers it's our good Justice anonin Scalia um it is his response in a case um having to do with affirmative action I'll talk about it in a minute but it's basically speaking back across 30 years to say nothing is owed so the idea that
• 16:30 - 17:00 affirmative action is predicated on the on the notion of institutions in disrepair um cities in disrepair markets in disrepair he's arguing that that's a false idea right there is nothing oh and here's the more important um Kick to what he's saying it's one thing to say that you don't have a constitutional right that has to be acknowledged to um repair so essentially one argument could
• 17:00 - 17:30 be you cannot use the 14th Amendment to force cities uh to create affirmative action programs for contractors for example that's one possible argument but just the Scalia goes beyond that in all of these cases having to do with affirmative action essentially one institution has already said we might not have to do it but we choose to do it we choose to do it because we're responsive um to the history we choose to do it because we're responsive to the
• 17:30 - 18:00 political process we choose to do it because we're responsive to institutional actors who say we don't like our institutions to carry the the signature of racial discrimination from the past so they've chosen to do it justice scalan and others on the Supreme Court are now saying you can't even choose to do it we're going to insulate the status quo against even politically legitimate efforts to create these onramps in into these institutions and
• 18:00 - 18:30 to change the way they do business so in a sense this position is one that constitutionalized the existing status quo and when I say constitutionalized it means we cannot uh disrupt it without raising a question of constitutionality without giving to plaintiffs who claim that being uh deprived of what one of my colleagues calls um it's all about diminished over representation so many of these instit utions are highly disproportionate in
• 18:30 - 19:00 which uh white Americans have a disproportionate share of most of what's valuable affirmative action cases are largely about fights about the diminishment of that over representation it's still going to be over represented but it's about the diminishment of it this idea of constitutionalizing the status quo means that the constitution stands with those who say I'm injured because our over representation has been
• 19:00 - 19:30 diminished right so these are the two uh competing ideas and color blindness is at the center of it uh largely because the idea is color blindness requires us to be neutral with respect to the existing status quo now um color blindness in is is introduced as the wouldbe victor of the 19th century if the courts in the 19 19 century had just held up justice harland's idea that our
• 19:30 - 20:00 society is a colorblind Society then the argument is we wouldn't have had all these problems so I want us to interrogate color blindness when it was introduced just to evaluate the extent to which it is true or not that have we simply adapted American society to a colorblind ideal we would have escaped the history of segregation we would have a different more integrated and racially
• 20:00 - 20:30 Equitable Society now so when I teach uh py versus Ferguson in my class I like to ask people um who um these various characters are um on the right side my right side um there's a picture of a segregated waiting room and then there's uh this person who do you think this person is this is a case about segregation it's a case that establishes that segregation is constitutional um so you look at this guy do you think
• 20:30 - 21:00 he's the judge in the case is he um Justice Brown is he Justice Harland is he the uh conductor that um apprehended Homer py and threw him off the plane who do you think this guy is how' you know that so it is um Homer pleasy um and you know we were just talking earlier about hypo descent um this is Homer P's genealogy uh way way way up in the I think it's the upper
• 21:00 - 21:30 right hand corner there's a black person um way way up there and everybody else in his lineage is legally white right um so um this genealogy actually raises one of the questions that Homer um was trying to make he actually made two different arguments but we only know the case for the second argument the first argument was that this particular system of hypo descent um in and of itself was
• 21:30 - 22:00 a racial injury so namely he obviously has a lot more white blood in him um than black um but that preponderance of white blood does not save him from being categorized as black it's an asymmetrical racial system right so you can't find somebody who has um the opposite and and basically say they're white if he had been um if all these other uh ancestors had been black and he
• 22:00 - 22:30 had one great great grandmother he wouldn't have been defined as white so he's saying that there's an asymmetry in the racial system that has deprived him of something valuable and that thing he's been deprived of is whiteness right um so that was case number one um argument number two was however we are defined by race to segregate people on the the basis of this classification
• 22:30 - 23:00 denies those who are defined as black of equal protection of the law so now the response to the first uh argument was but you are not white so because you're not white you don't have standing to make the argument that you've not been defined as white right so essentially it's a circular argument you can't make that argument because you don't have the standing to make that argument because the the actual law has already defined
• 23:00 - 23:30 you as not being white so it it it's basically the Court's refusal to engage in it now I often ask people if Fairy Godmother from the past um comes forward and says homer plusy I'm going to bless you with one of your arguments you just have to decide which one you want to win you can either win the idea that the racial structure um is itself asymmetrical and racist so that you and people like you can actually make a
• 23:30 - 24:00 claim for whiteness that the law will back up or do you want to win on the question of whatever the racial classification system is to create racial segregation in this particular social order um is unequal under the 14th Amendment and we have great debates about this because a lot of people say well if you if you show the inherent um uh uh asymmetry of the racial structure then that is is a fundamental blow uh to
• 24:00 - 24:30 racism so we should pull that one out right and other people say well not necessarily because there will still be people who are preponderant of the evidence would be black and they will still be subject to racial segregation and it's interesting over the course of the years the we should dismantle the racial system line has won out over the however people are defined we should not have segregation um largely because I think people buy the argument that the problem of race is acknowledging race
• 24:30 - 25:00 the problem of race is the one drop of blood rule so if we just pull that string it'll all unravel and I simply say at the end let us talk about Brazil if we really think um that removing you know the juridical category of Blackness or providing for greater fluidity in a racial system is actually going to eliminate racism but I'll just talk about that afterwards if folks want to go there um so uh py the py court um uh
• 25:00 - 25:30 ultimately decided that segregation was was constitutional but did it on a very curious argument they said um it is true that the 14th Amendment did create the right to symmetrical treatment um and it created that right of symmetrical treatment as a right to civil equality it did not create a right to social equality so the question is which side of the line did segregation fall on right um how do you know whether or not
• 25:30 - 26:00 um segregation actually violates um the promise of civil equality or not well the court said look um if everyone is treated the same then we have civil equality now one might think good P's going to win because obviously you're not being treated the same if you're being forced to sit in a dirty noisy uh nasty car because you're black but if you are white you could sit in a better car not so quickly the court said of course
• 26:00 - 26:30 everybody is treated the same um they're treated the same because they're being treated symmetrically whites can't sit in black cars blacks can't sit in white cars there's inequality in that right that's symmetrical so all this the state of Louis Louisiana had to do was show yes we don't allow blacks to sit in white cars we don't allow whes to sit in Black cards the courts good got you you're you're okay now we all by 20 Century lights look at that and say how
• 26:30 - 27:00 can anyone think that's symmetrical treatment when we know what segregation was actually about it was all about the asymmetry of the message the asymmetry of the experience um the symbol um of it the um consequences of it there were all these asymmetries that had everything to do with defining what segregation was about so what did the court do with those asymmetries they put them in the social realm you
• 27:00 - 27:30 can't do anything about those uh asymmetries they're all social right so people are choosing to interpret segregation in a certain way the court said look um we're white if the blacks take over the legislature and they create segregation we certainly wouldn't feel that we are inferior because of it so you should just choose to think differently right if you think differently you have your solution like cck click your heels three times and you'll be in you know the racial Promised Land um the second thing the
• 27:30 - 28:00 court said was look um if we give pie this right to social equality we're actually giving the groups something they don't deserve um and that would create all kinds of problems so what we have to do is just stand back um and let the whole thing work itself out in the racial Marketplace eventually African-Americans might show themselves to be worthy eventually they might be able to pull themselves up by their bootstraps but we can't give it to them because that would be giving them preferential treatment we
• 28:00 - 28:30 can't give them something that they don't deserve right um so this court was under the view that segregation was a transparent social system that didn't already create the outcomes that they said that they were standing by willingly neutral to let play out in other words the idea is that segregation itself did not actually shape the idea about racial value that people thought
• 28:30 - 29:00 they were seeing right now Justice Harland comes in people like to think that he's the hero of the story saying um we should be colorblind this is ridiculous we shouldn't have um a constitutional rule that permits the states um to create segregation along with all the messages of inferiority that go along with it so as far as he's concerned the rule should be colorblindness now folks have lifted this up as the Constitutional Theory will save us all the Constitutional
• 29:00 - 29:30 theory that will give us um equality but let's figure out what uh justice harand said just before he said those great words about color blindness he basically said look we got this white people we don't need this extra you know law to reinforce our superiority we are the dominant race and we will be for all time as long as we stick with the program right we don't need this extra
• 29:30 - 30:00 stuff so his idea of colorblindness was not a corrective to racial subordination it it wasn't going against racial domination it was perfectly consistent with it it was more or less we don't need Overkill and segregation is just Overkill and it's just in bad taste we really don't need it right so this idea that people have that harland's notion of color blindness would save us or it is somehow got deep bonafides in the
• 30:00 - 30:30 idea of racial Justice is just not historically accurate from the point of view of Justice Harland himself now the question is what is the Contemporary consequence um of pley so I'll just say a couple of these um notes so today the idea of color blindness in many ways replicates the symmetrical notion of py um and uh Justice harland's colorblind ideal um let's go back to that uh
• 30:30 - 31:00 affirmative action case that I was just talking about with uh justice Kalia um it was a case of Richmond versus croen many of you know it uh Richmond uh cradle of the of the Confederacy um a city that was no stranger uh to the Supreme Court it had been before The Supreme Court for housing discrimination voting discrimination um they closed their school system rather than integrate after Brown that's how hardcore Richmond was right um so now
• 31:00 - 31:30 the issue was in a city that was uh nearly 50% black less than 1% of all of the state's Contracting dollars went to minority businesses so um when the city council became uh a more fully representative council um they held hearings and decided that they would create a set aside program um so some percentage of the subcontracts would go to minority businesses um the uh main Contracting Association of course sued
• 31:30 - 32:00 and this case went up to the Supreme Court and the question was whether this kind of intervention was constitutional or not and the response was equal protection requires symmetrical treatment symmetrical treatment now means colorblindness so this is unconstitutional because the distribution scheme is not color blind right so once again you might say well what about all the a as symmetries that we're talking about some of them the
• 32:00 - 32:30 same asymmetries that we were talking about in pie namely who has access to Contracting the consequence of industrial lockout the consequence of a whole history of of individuals not having access to Contracting because Contracting is basically an old boys kind of process what about all those asymmetries and the answer there is the same as the answer in py they're societal you can't redistribute societal value no
• 32:30 - 33:00 matter how much it's tied to racism of the past no matter how many people you can point to that didn't have a chance of being a minority business in fact the reason why Justice OK Conor gave for not being able to sustain affirmative action is we have no idea how many minority businesses there would have been had there not been uh past discrimination the whole point of affirmative action was to actually create the opportunities for those minority businesses to come into being and that's precisely why
• 33:00 - 33:30 Justice oconor said we cannot have it because you can't even show us any people who were actually discriminated against so what I'm trying to suggest here is the same kind of symmetrical treatment that we now think is silly uh namely black sitting in one car white sitting in another is actually being reproduced today in color blindness a silly idea that race is basically skin color rather than social relationships
• 33:30 - 34:00 historically uh situated uh patterns of access that is seen as being societal and to actually try to redistribute that is seen as violating um the Constitution now in case you think that that doesn't go far enough let me just throw this last little bit at you um this idea of color blindness was basically used to say um that Linda Brown um who was the plaintiff in Brown versus Board of
• 34:00 - 34:30 Education was basically being harmed in exactly the same way as the students that she walked by on her way to school right because all of them were subject to classification in determining what school they went to so all of the information about what racial segregation did all of the ways that it created an asymmetrical system have now been washed out of Supreme Court Doctrine and the only injury is the injury of being assigned to school
• 34:30 - 35:00 because of your race not being assigned to subordinate position because of your race not for being that group that no one wants to be in school with because of their race not the long-term social consequences of being a group of people who are Pariah class none of that has anything to do in in terms of these four justices with what the actual injury was in Brown versus Board of Education right so um as as Justice uh Robert says
• 35:00 - 35:30 there's a solution to race discrimination um uh basically just put your race sunglasses on you don't have to see it anymore and if you don't see it it's not a problem now um I want to say just a few words about education and and then move to the last part um of my uh conversation with you um uh University of California versus baky one of the major cases that played a role in pushing back a broader social Vision that was possible um University of
• 35:30 - 36:00 California had affirmative action program 16 seats were set aside for students of color to compete um I I do want to say this a lot of times uh baky gets talked about as a case having to do with black students in fact there are very few black students um in the program this is California right so um the majority of those students uh were not black there were some blacks but um they were Latinos they were asian-americans um some Native Americans
• 36:00 - 36:30 and some African-Americans but it gets framed as a black race case um for reasons that um I'll suggest in a second so University of California offered four justifications um you can see them um interestingly look at what is in common with the first three justifications and what's different about the last one all right um all the first three justifications have to do with the consequences of segregation in theory history of racial domination they have to do with elevating the interest the
• 36:30 - 37:00 needs of communities of color the last one is about the University's interests right the University's educational interest corporate interest however you want to frame it in the decision that that circulates now as the decision of baki all those first three justifications were removed as legitimate rationals for affirmative action so anything having to do with repair um is out side of the justification that the Supreme Court
• 37:00 - 37:30 upheld the one that they did address and embrace was the interests of the institution right so um I think we heard earlier this morning that basically diversity says we will bring students in so that the university experience is more educationally valuable for everybody not really everybody it's for the folks who wouldn't have been exposed um to students if there hadn't been an affirmative action program so what's the consequence of an affirmative action
• 37:30 - 38:00 program um that's not rationalized based on the actual interest of the community but instead rationalize on Notions of diversity well there any number of negative outcomes but the most significant one is that it preserves the idea that affirmative action is a preference it pre it preserves the idea um that the students are by some measure less qualified and it preserves the idea um that the existing uh ways in which
• 38:00 - 38:30 the institutions are functioning are not necessarily problematic so we kind of see the consequence of that um in many of the affirmative action cases that are debated now uh because affirmative action is not a right um it's something that universities can do states can remove the ability to actually pursue affirmative action so that's what happened in California that's what happened in Michigan that's what happened in Washington uh voters decided to repeal the capacity of universities
• 38:30 - 39:00 to actually engage in um affirmative action um some will say that affirmative action um is an unjustified preference I want us to just do a quick thought experiment to see whether it is a preference or something else um if you look at all the different things that uh the University of Michigan one of the key States that had an affirmative action uh program gave people credit for you will see that the vast majority of
• 39:00 - 39:30 points that were available in the admission system were wildly maldistributed on the basis of race right so that was a builtin preference in the admission system so you see you could get 28 points generally on criteria that largely were distributed to white people and Mal distributed to people of color so 20 points were made available uh for those who uh were people of color
• 39:30 - 40:00 so the question is not whether the admissions regime was a preference the question was was it too little to offset the preferences that were actually built in into the system in the first place right so again the whole fight over diminish rep over representation now the whole fight over do these few points actually fully offset the extent to which race is built into the very admission system okay so let me move on and and come to a a couple final points
• 40:00 - 40:30 on this and then say a couple words about gender um the uh anti-affirmative action um debates that we've been talking about um have shaped what I call a certain kind of post-racial uh response and that post-racial response um is one that uh first of all seeks to minimize um the the importance of affirmative action and secondly gives rise to those who say out
• 40:30 - 41:00 of all the different kinds of values and policies being enacted in distributing access to higher education the only one that's politically problematic is uh Racial equality um so here we have uh Abigail uh fiser um who actually was an average student there's really no proof that she would have gotten in even if there hadn't been an affirmative action system but the very fact that she can lay claim that the University of Texas
• 41:00 - 41:30 taking race into account was an injury to her not an injury that took away the opportunity just the fact that her race wasn't valued um in the admission system was enough to give her standing to actually make a constitutional claim against the University of Texas this is a broadening um of the reverse discrimination argument into an active right not to have race taken into account because it might be something um that you don't have access to I'm sure
• 41:30 - 42:00 we've all heard um about the arguments and how those arguments actually play out um this one I very much want you guys to see and all right um the third rail look at these pictures um do we still need a affirmative action 10 ways to think about it look at the first picture when
• 42:00 - 42:30 you think about affirmative action and it says 10 ways to think about it what are at least three of the ways that that picture suggests that you should think about whether affirmative action is still necessary or more importantly who benefits from affirmative action so affirmative action is about what groups black people right and who's not in that picture okay so women are not in that picture
• 42:30 - 43:00 white women are not in that picture other people of color are not in that picture and importantly look at his his dress what is that telling you what kind of a uh African-American is the picture suggesting uh benefit from affirmative action yeah so so middle class you know relatively welltoo has the air of privilege in the pose right so some people might look at this and think this is someone who was actually part of the Michigan case he's a model if you look in the inside front
• 43:00 - 43:30 page it says you know thank you gap for the for the gear thank you Pier cardan for the tie you know thank you for the glasses someone imagined what the typical beneficiary of affirmative action was pose this as reporting on affirmative action right media is the third rail here right cuz this person is just meant to represent a particular line on what the problem of affirmative action is that we consume as a real
• 43:30 - 44:00 story about affirmative action right um subsequent Studies have shown that most of the reporting about affirmative action follow precisely this kind of pattern presenting it as all about blacks no one else all about race not about gender all about privileged uh African-Americans not the fact that for the most part African-Americans and other people of color got access to jobs that they would have never had through affirmative action and most of it is not really about universities take a look at
• 44:00 - 44:30 the second picture what's different about the picture that is a different color it's broken it's dull it it it's not up to the standards for which we want to use pencils for which is to write this is the cover of a book uh created by um a colleague of mine called the mismatch Theory um he is a liberal um wants to let everybody know this but his basic argument is that affirmative action actually harms black students and
• 44:30 - 45:00 my mind you he only talks about black students again harms black students because it puts them in environments in which they are overmatched and the overmatching is based on standardized tests so if I had more time we could talk about standardized tests and we could talk about stereotype threat we could talk about all of the things that make us um worry about overreliance on standardized tests the basic point is any argument about black intellectual deficits floats the these days this is
• 45:00 - 45:30 on the front page of the New York Times any other argument about some of the stuff that everyone's been talking about today is on the back pages if it gets reported at all so this is part of the post-racial moment you can talk about intellectual deficits cultural deficits you can talk about whether black kids listen to Too Much hip-hop you can talk about you know whether they don't have the same kind of commitments to education that's okay post-racialism does not constrain your ability to come
• 45:30 - 46:00 up with racialized explanations for inequality what it does constrain is your ability to talk about anti-racism what it does constrain is your ability to make the links between the past and the Contemporary moment that's the ultimate feature of post-racialism so I'm going to end um with a little video clip n
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