CIVIL RIGHTS IN AMERICAN LAW, HISTORY, AND POLITICS
by Austin Sarat (ed). New York: Cambridge University Press, 2014. 266pp. Hardback $95.00. ISBN: 9781107039292
Reviewed by David L. Jones, Department of Political Science, University at Albany. Email: djones2 [at] Albany [dot] edu
The common theme of the works collected in CIVIL RIGHTS IN AMERICAN LAW, HISTORY, AND POLITICS (hereafter CIVIL RIGHTS) is that, contrary to much commentary from the Right, racism is not just a problem of the past and making color disappear from the law does not make America a colorblind society. Moreover, another theme suggests that a color-blind philosophy to law ignores – with very real consequences – the structural and institutional discrimination that still pervades our society. Finally, Civil Rights speaks to the “myth of rights” literature pioneered by editor Austin Sarat’s longtime collaborator Stuart Scheingold by posing a challenge to the “myth of civil rights” that emphasizes formal changes over substantive ones.
Over the past ten years, conversations from the Law, Knowledge, and Imagination Symposia (LKI) at the University at Alabama School of Law have resulted in the production at least eight books, each of which have been edited by LKI Symposia chief organizer, Austin Sarat. At the 2014 Law and Society Association meeting in Minneapolis, a panel devoted to the contributions of Stuart Scheingold and Sarat included high praise of Sarat’s prolific ability to encourage and cultivate collaborative efforts between scholars. That the four most recent works springing from LKI have been published in under a year and contain thirty-three different contributors is a testament to Sarat’s lauded ability to bring scholars together. In this volume, each chapter is followed by a short commentary by a separate author. The commentary complements the preceding chapter by building on its arguments and creating dialogue between the authors. This produces a dynamic that I believe could be useful in upper level undergraduate seminars -- though the price-tag might prove too much for some students. As is true with the LKI Symposia, this work should attract a wide audience of legal, political, historical, social, and interdisciplinary scholars interested in civil rights in American law.
Chapter One, “Race Law Cases in the American Story” by Devon W. Carbado and Rachel F. Moran is a historical survey of cases involving race from all levels of American courts. The primary argument is that our understanding of civil rights is often limited to the struggles of African Americans – a point made ironically by the book cover of African American civil rights leaders – which has the effect of masking both the multiracial nature of civil rights struggles and new ways of understanding racial inequality. A closer examination of the hardships of other groups such as Native Americans, Latinos, and Asian Americans, [*354] illuminates the complexities of racial and legal interaction. The second argument, unannounced at the onset, is that a colorblind philosophy to racial discrimination cases hurts efforts to alleviate contemporary inequality. The philosophy, they argue, is unsuited for today because it harkens back to a time when courts were dealing with blatant racial caste systems. Today, the legacy of color-blind standards set out in cases like PEREZ V. SHARP and LOVING V. VIRGINIA are used to strike down state remedies for the inequalities caused by the historical discrimination of those very systems (see PARENTS V. SEATTLE or SHELBY V. HOLDER).
In the commentary for Chapter One, Grace Soyon Lee extends Carbado and Moran’s concerns by looking at the intersection of racial and political identities within ADOPTIVE COUPLE V. BABY GIRL. Lee writes that their point is demonstrated by the majority’s decision in BABY GIRL to not recognize the rights of the biological father under the Indian Child Welfare Act (ICWA). This is a decision Lee believes negates the concern for blood ties as well as the cultural connections to the tribe as a whole – a result of a color-blind approach. As a result, the majority in Baby Girl turned away from recognizing significant aspects of race, and thus weakened the intended ability of the ICWA to protect the continued existence of Native American tribes.
In “Race is Evidence”, Montrè D. Carodine confronts what she calls a romanticized civil rights myth by delivering narratives from the courtroom and her own life. Her argument is twofold: first that the new racism is the denial of its very existence and second, that was can locate racism in the very structure of our criminal justice system as demonstrated by evidentiary rules. She explains there is an American tradition of using race as evidence dating back to the era when a person’s color could be used to as prima facie evidence that one was a slave. Today, there are rules like Federal Rule of Evidence 609 which “allows for the admissibility of a witness’s prior conviction as impeachment evidence” (p.84). This hits African American and Latino witnesses the hardest, as data on arrests show that these two groups are more likely to have felony convictions than white witnesses. These types of rules and stereotyped character evidence exacerbate an already grave inequality in our criminal justice system and do so in a way that is formally colorblind, allowing some to claim that there is no injustice taking place at all.
Tanya Asim Cooper’s commentary complements both Carodine’s argument and the commentary by Lee. Cooper writes that there is a near apartheid level of discrimination in America’s foster care system which is evidenced by the “disproportionate representation of Native American and African American children in foster care” (p.104). Cooper lays this problem at the feet of color-blind laws and policies that give judges autonomy to decide what is in the best interest of the child. These decisions are often based on the type of racial stereotypes and negative character evidence that Carodine identifies. Furthermore, people of color often lack the resources and power to combat these stereotypes in the legal system, leaving them unable to combat a system that allows the explicit use of race. [*354]
In “Blurring the Color-Blind Line” Mark Brilliant tries to slay the purveying myth espoused by conservative and even some liberal commentators that the original goal of the civil rights movement was color-blindness which then precludes color-conscious reforms like affirmative action. Such claims equate a color-blind philosophy with civil rights, an equivocation he believes is a mistake. Brilliant examines statements from movement leaders, litigators, and the opinions of judges on anti-discrimination laws and affirmative action. What he finds is that “elements of color-blindness and color-consciousness were intertwined” within strategies reaching from World War II to the middle of the Cold War (p.125). Thus the rupture from color-blindness to color-consciousness often cited as a betrayal of the original intention of civil rights leaders is greatly overstated.
This chapter puts forth a very important argument though, as commentator Fredrick E. Vars points out, it could have been strengthened with extending the analysis a little further past the beginning of the Cold War and to the 1978 case of REGENTS V. BAKKE. However allowance of writing space may have been the culprit here and Brilliant’s point that these color-blind and color-conscious strands were intertwined at the conception of the Civil Rights movement works without such an extension. Brilliant also makes the curious choice to begin with a comparison of the rhetoric of President Obama and President Reagan to symbolize these two strands, concluding that their language shared a similar whiggish narrative which he concludes Obama borrowed from Reagan. While Vars challenges Brilliant’s conclusion by stating that Obama’s rhetoric is more like Clinton’s, I think Brilliant’s analysis was simply altogether unnecessary. The rest of Brilliant’s chapter is interesting and capable enough of standing on its own without that set-up.
In Chapter Four, “Reframing the Civil Rights Narrative”, Susan Strum focuses her attention on an approach to reform that commentator Steven H. Hobbs compares to the vision of inclusiveness imagined by Dr. Martin Luther King Jr. Strum argues that the civil rights narrative is focused (not altogether incorrectly) on formal changes to policy and enforcing compliance with color-blind policies. However these legal and regulatory strategies fail to address deep structural inequalities left in their wake. Strum proposes a new framework, one focused on full participation of the community that has targeted, affirmative goals aimed at specific problems. Such a framework is important, Hobbs notes, in its “full and complete identification of all the obstacles to full citizenship participation” (p.187). As an example, according to conventional benchmarks, Rutgers University had done everything right to rectify racial inequalities on campus. When Rutgers realized they still had a lack of admitted and graduating local minorities, community leaders and groups worked together with the school to focus on targeting poor students and secondary schools around local Rutgers campuses. This approach brought in participation from the community, created an affirmative goal and new solutions instead of trying to comply with old policies.
In a bold and fitting end to the work, Richard Ford argues in “Civil Rights and the Myth of Moral Progress” that we [*355] should abandon the very frame of “moral progress” to support and defend new policies of equal rights. This is because the myth of moral progress clouds our judgments about the value of policies and often leads to supporting reform that may in fact impede substantial improvement. This myth makes us believe that “what we have today is better than what we had in the past” (p.199). It also implies that “progress is inevitable” and that progress in one area will always lead to progress in another (p.199). Resting on these assumptions often leads to bad policy that is supported proudly as “progressive”.
According to Ronald Krotoszynski, Jr., Ford’s argument is not incorrect but is overstated. He would not “advocate the wholesale abandonment” of “moral progress” but would instead essentially ask that we be careful of what we do and say in the name or progress (p.239). In other words, we should not favor one set of reforms simply because we think it is progress – we should be supporting reforms because they are good (p.233). Krotoszynski applies Ford’s approach to analyzing how we talk about human rights in America, and compares America’s tendency to think it has reached the end of the moral arc in human rights to the improvements in Europe.
Overall, I have very few criticisms of CIVIL RIGHTS. Though there are a few typographical errors, the pieces are well written and organized. While many edited collections share common themes, Civil Rights needs to be understood as a sincere conversation among scholars – a byproduct of a successful symposium. Not only do the works share common themes, the commentaries also engage the preceding chapters and consistently incorporate their ideas. For example in her commentary on Chapter Two, Tanya Cooper concludes with possible reforms including outside work of Montrè Carodine and the prescriptions suggested by Susan Strum in Chapter Four. There are also intermittent references within each chapter to co-authors that really brings the pieces together. The book contains a great deal of normative claims, personal narratives, as well as independent research. The former might turn some readers away, but I believe it adds to the interest and significance of the book’s arguments. Finally, Civil Rights should speak to scholars across disciplines: to political scientists looking for ways to measure power and privilege, to historians tracing the roots of our inequality dilemma, to sociologists interested in identifying submerged social barriers to equality, to policy analysts concerned with intended policy goals versus on-the-ground effects, and to legal scholars trying to understand the costs and benefits of legal tactics. But really, each of these issues is of interest to all parties, especially Law and Politics Book Review readers.
Steven Hobbs writes that this book is especially timely as we now commemorate the fiftieth anniversary of the 1960’s Civil Rights era (p.182). Thus the ideas behind this work are important because they remind us that civil rights is not just a history lesson. It informs us of the many ways that civil rights in the American story is an on-going struggle, even in an age of supposed color-blindness. Though it does not bill itself as such, the work is an indictment of this color-blind approach to solving inequality. It does so by highlighting the different ways the myth [*356] ignores vast structural discrimination for the sake of advancing changes in formal policy. This result, while acknowledged to be important to many critical advancements in our society, has also led a romanticized story of civil rights progress in America that is criticized here as a myth, whiggish, commercialized, and as mistakenly limited to one racial group. Thus maintaining a balanced understanding of civil rights story in American law, history, and politics is critical as we struggle today to recognize the disparate and discriminatory treatment of racial minorities within our institutions. CIVIL RIGHTS gives us reason to pause and acknowledge both the overt and submerged discrimination that challenges the popular narrative of civil rights in the American story.
LOVING V. VIRGINIA 388 U.S. 1 (1967).
PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE SCHOOL DISTRICT NO. 1, 551 U.S. 701 (2007).
PEREZ V. SHARP 32 CAL.2D 711 (1948).
REGENTS OF CALIFORNIA V. BAKKE 438 U.S. 265 (1978).
SHELBY COUNT V. HOLDER 570 U.S. ____ (2013).
Copyright 2014 by the Author, David L. Jones.