Conferring Privilege: DOJ, Law Schools, and the New Politics of Race

Peter Wood

The resignation of career official J. Christian Adams from the Justice Department in protest over the Department’s decision to dismiss its charges against the New Black Panther Party has put a spotlight on a legal theory that apparently has considerable support in the Obama administration.  The New Black Panther Party was accused of using threats of force and intimidation at a polling station in Philadelphia in the November 2008 election.  Some of the New Black Panthers were caught on a widely circulated video threatening would-be voters verbally and with a nightstick.  The actions of the men in the video seem to be a clear-cut instance of a violation of the 1965 Voter Rights Act--but apparently not to some senior figures at the Justice Department.  The nonfeasance of the Justice Department in this case has drawn the attention of the U.S. Commission on Civil Rights which has opened its own inquiry. 

What’s going on?  

This year marks the 45th anniversary of affirmative action, and the irony has never been thicker.  It was on June 4, 1965 that President Lyndon Johnson gave his “Freedom is not enough,” speech at Howard University, in which he called for steps to achieve racial equality in the United States beyond simply removing legal barriers.  Later that year he issued Executive Order 11246, which made affirmative action an official federal policy.   Johnson had no idea that what he had set in motion in the name of equality would eventually become the basis for a new institutionalized system of racial inequality.  

In the decades since, we have watched the rise of a racial preference industry, some of it focused on implementing racial preferences in particular settings and some of it aimed at inventing and selling ever more elaborate justifications for the whole idea of privileging members of some racial groups over members of others.  The latter necessarily involves a great deal of logical and linguistic gymnastics.  It isn’t easy to use the rhetoric of fairness to advance what most people recognize as a manifest form of unfairness.  But some members of the legal profession have risen to the challenge.  This is a large part of what lies behind the strange decision of the Justice Department to drop its case against the New Black Panther Party.  Adams, the Justice Department official who resigned over the case, says that political appointees higher up in the Justice Department are hostile to “race-neutral enforcement of civil rights laws.”  Let’s consider how this concept of race-conscious application of the law is percolating through the larger legal fraternity. 

Spinning Legal Theory

Few organizations have surpassed the Association of American Law Schools (AALS) in their inventive efforts to keep the unfairness-in-the-name-of-fairness spinning, like a ball on the nose of a trained seal.  In June, for example, AALS held a workshop titled "Post-Racial" Civil Rights Law, Politics and Legal Education: New and Old Color Lines in the Age of Obama (New York City, June 10-12).   The title, apart from the scare quotes around “post-racial” doesn’t give away much.  But the official announcement of the conference was clear.  It frets that America might be on the verge of colorblindness—an actual willingness on the part of the judicial system and people in other walks of life to treat individuals as equals rather than as walking embodiments of various racial identities.  The AALS is, of course, appalled by this prospect, which it calls “Change I.”  

Change I: The installation of colorblindness as both the normative backdrop against which race is publicly discussed and a formal legal technique to adjudicate civil rights cases. This installation produces racial denials (of racism), racial prohibitions (of racial consciousness) and racial elisions (of existing racial inequalities). Colorblindness has simultaneously undermined the emancipatory potential of civil rights law and made conversations about racial justice in civic and political arenas virtually impossible. At the same time, colorblindness has enabled and legitimized a discourse of cultural difference and social responsibility that now serves as the principal explanation of and justification for existing racial hierarchies. 

Changes II and III are the shift to a “majority-minority nation” and the election of Barack Obama.   The AALS expresses its general approbation at Obama’s election but worries that it has already advanced the mischievous idea of a post-racial nation: 

Exactly what this term will come to mean is anybody’s guess. What is clear is that post racialism has already begun to operate as “replacement labor” for the ideological work that colorblindness has traditionally performed. 

The first plenary session at the AALS meeting, "The Legal (Re)production of Inequality"  was to focus "on the role law plays in reproducing inequality, even or perhaps especially when no formal 'racial classifications' are involved."  Small group sessions were slated to “examine how to incorporate race into non-traditional race law classes, such as tax and the basic first year curriculum." 

One might think that an association purporting to represent the schools that are the gateway to the legal profession would observe a degree of intellectual restraint and non-partisanship on such issues.  But no, AALS presents itself plainly as a player openly advocating one side.  In describing another session at the June meeting, AALS draws the battle lines and places itself firmly on one side:  

While conservative arguments tend to explain . . . racial disparities in terms of agency and social responsibility, liberal or progressive arguments tend to invoke broader social structures. As between these two competing explanations, the conservative one has far more traction—politically and doctrinally. This makes it all the more important for proponents of the 'social structures' approach to articulate precisely how such structures work. From the standpoint of the social structures approach, law can play a role in reproducing inequality, even when no 'racial classifications' are involved. It is the project of this plenary to demonstrate some of the distinctive mechanisms through which law reproduces racial inequality in areas including: criminal justice, healthcare, housing education, employment, immigration, and constitutional law. 

Lest that last sentence slip by underappreciated, let’s hold it up for admiration.  The plenary session of the AALS conference was dedicated to “the project” of demonstrating claims that are part of what the AALS acknowledges are “liberal or progressive arguments.”   Open-minded analysis, skeptical inquiry, and reasoned debate are on notice: no place for you here.   The task of the plenary session is merely to convey truths arrived at by some undisclosed form of discovery. 

Another plenary session asked "whether law remains a productive vehicle with which to achieve racial reform. From antidiscrimination law to immigration law to human rights to housing and criminal justice reforms, the panelists will explore the possibilities and limitations of law—working alongside large and small scale political organizing—to effectuate progressive racial change.”  

In other words, AALS ponders if the law gets too colorblind, what else can we activists do to keep race salient?  It is a perfectly legitimate question for a political movement to ask, but it seems far outside the bounds of what an association of law schools should be asking. 

Core Values?

As law professor and NAS member George Dent put it, the AALS organized “a gathering more for partisan strategizing than for objective intellectual colloquy.”  We probably have become so inured to this sort of dereliction of academic duty that few will be shocked to see AALS engaged in such perversion of its actual purpose.  But it is still worth considering AALS’s official reason for being.  It is, according to its website, “a non-profit educational association of 171 law schools representing over 10,000 law faculty in the United States.”  And it has a clear, non-controversial mission: 

The purpose of the Association is “the improvement of the legal profession through legal education.” This goal is furthered in a number of ways, including professional development programs for law professors and administrators, a complement of over 90 sections organized by faculty and senior administrators, and a membership process that is designed to further the core values of the Association. 

Do those “core values” include promoting racial discrimination, fostering an ethos of racial resentment, and encouraging race-conscious application of the law?   Do they warrant the thrusting of political objectives over scholarly inquiry?  

Not according to the AALS’s own statement on the matter.  The “core values” are enumerated there as:  

The Association values and expects its member schools to value: 

(1) a faculty composed primarily of full-time teachers/scholars who constitute a self-governing intellectual community engaged in the creation and dissemination of knowledge about law, legal processes and legal systems, and who are devoted to fostering justice and public service in the legal community;
(2) scholarship, academic freedom, and diversity of viewpoints;
(3) a rigorous academic program built upon strong teaching in the context of a dynamic curriculum that is both broad and deep;
(4) a diverse faculty and staff hired, promoted, and retained based on meeting and supporting high standards of teaching and scholarship and in accordance with principles of non-discrimination; and
(5) a selection of students based upon intellectual ability and personal potential for success in the study and practice of law, through a fair and non-discriminatory process designed to produce a diverse student body and a broadly representative legal profession. 

I should perhaps not expect to win any argument with an association full of lawyers skilled at turning explicit texts upside down, and especially not in circumstances in which the derelictions are being committed as part of an avowed political agenda.  But still, I would hope for some tinge of embarrassment on AALS’s part.  There simply is no fair-minded reading of its own mission and values that would warrant its holding an event like its June workshop on the danger of a post-racial America.    

What does it matter that the AALS is violating its mission?  Well, for one thing, AALS is busy undermining the rule of law.  Its actions are deeply if invisibly connected with the decisions by those in the Obama Justice Department to drop the case against the New Black Panther Party.  A colorblind Justice Department would treat a gross violation of voting rights the same, whether perpetrated by whites, blacks, Asians, or Inuits.  A Justice Department that is persuaded that colorblindness is wrong and that Civil Rights law should be enforced only on “behalf” of protected minorities is well along in the logic of the AALS workshop.  

But that isn’t all. The AALS is an association of law schools, not of individual scholars.  It participates with the American Bar Association in law school accreditation. Many of its members are public law schools—i.e., government institutions. This means there is a strong public interest in having the AALS be thoroughly non-partisan.  That AALS lightly tosses aside its obligation to be a politically-neutral body that represents the real diversity of views among law schools and law school faculty members is a genuine scandal.    

Affirmative Folly

There are worse things than being naïve, and one of them is fake sophistication.  The racialist movement in American law puts on the air that our nation is of course racist at its core and the key problem for those who care about justice is keeping up with what the AALS workshoppers call “denials” and “elisions.”  In this view, anyone who aspires to a legally colorblind nation or a post-racial one is either dishonest or profoundly hoodwinked.  It is a theory that requires no proof and indeed disdains the need to prove anything, since to do so would grant legitimacy to those who believe that racial preferences are not the right way forward.  All that is really needed to support this attack on “denialists” is a determination to spin the news to fit their fixed belief in America’s never-ending racism.  

It is alarming that this conspiracy theory has now found a home for itself at the U.S. Justice Department.  And it is just as alarming that the Association of American Law Schools has thrown its weight behind it.  The alarms are somewhat different.  On one hand, we need to be concerned that our laws are fairly and even-handedly enforced.  On the other hand, we need to keep watch on our system of legal education.  It can bear only so much politicization.  When AALS proceeds with a workshop like the one described here, it is opening the door to some very serious mischief.  

Given the alacrity with which the smears like “denialist” are thrown around by some proponents of racial preferences, I should be very clear about my own views.  President Johnson was right in 1965.  Mere formal equality was not enough to overcome centuries of institutionalized racial discrimination.  Strenuous efforts were needed to rebuild and expand the black middle class, to open doors of opportunity, and to change the culture.  

To an astonishing degree to anyone who remembers that time, these steps have succeeded.  Americans today generally want to get beyond race, and in many ways we have.  But not in every way.  Actual racial discrimination persists in some venues.  A deeper and more persistent problem is the “achievement gap” in school.  This gap is not in any meaningful way the result of “institutional racism” as some would have it.  It is primarily a result of the breakdown of the family and a culture of psychological dependency.  The achievement gap is the wedge that keeps our society from achieving full racial equality.   And we are nowhere close to solving it.  

Much of the time we are like physicians of centuries past who bled their patients to reduce their fevers—leaving them worse off for the intervention. Today’s equivalent of bleeding the patients is the regime of racial preferences.  The evidence is abundant that racial preferences in education have perverse effects at every level.  They discourage students, mismatch them to opportunities, and diminish achievement.  Racial preferences are not just unfair.  They implant illusions of success that undermine students’ capacity to internalize the hard forms of self-discipline that education requires.  Nor is this a matter of “blaming the victim.”  It is to the contrary blaming the racial preference advocates who, faced with a generations-long failure of their favorite nostrum, insist on applying it over and over.  The problem is not affirmative action per se; it is the perversion of affirmative action in the form of racial preferences.  Those preferences are wrong in every case, but they are at their most perniciously destructive in the world of education.  

I can’t blame that on the Obama Justice Department or the Association of American Law Schools, but it isn’t hard to see the common thread.  They share the view that racial double standards are legitimate as a tool to overcome endemic American racism—and they seem oblivious to the reality that their double standards work mostly to entrench inequality and foster still more racism. 

Most Americans want our nation to be a nation of laws, not a nation of racial preferences, or a nation locked in a perpetual grudge match over past wrongs.   Most, but not all.  We should lament that on the 45th anniversary of the creation of affirmative action, the advocates of double standards and inequality-as-the-path-to-equality are able to sway the Justice Department and enjoy such dominance in our system of legal education.  Those folks have hijacked an important idea.  We should take it back. 

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