• I think this is actually false. In this instance, I think the rankings are absolutely irrelevant. I believe there is a consensus among the faculties of leading law schools that it is in their social and organizational interests to draw students from all over the world and from every part of our society. I think if the ranking structures changed tomorrow, that would not change at all.

Special ‘diversity’ initiatives are crafted to publicize retention efforts and emphasize the value of diversity in a dynamically evolving, ‘global’ legal profession.

• This stuff is claptrap, I will grant you, but the irony of the essay from my point of view is that the political structures you are praising have as much to do with the adoption of this form of diversityspeak as the timid and beleaguered administrators themselves.

Though the ‘advantages’ that come with exposure to brown, black and yellow faces in an American legal industry that is actually resistant to globalization seem dubious, schools openly tout the idea that a more diverse student body will lead to divergent viewpoints toward the law.

• Not too surprising, unless you uncritically and reflexively identify the school with the industry, which I am trying to teach you not to do.

These differences in turn will 1. enrich the degree and scope of collaboration across the student body, 2. foster more varied and nuanced approaches to the law, and 3. provide opportunities for students to build lasting connections with, and learn from, those significantly different from themselves. The admissions page of one law school, for example, describes its commitment to diversity as such:

• But people's ability to talk nonsense has never been successfully restrained anywhere about anything. So what conclusion does the existence of quotable nonsense entail?

However, the supposed gains to be achieved from these diversity initiatives often go unrealized in an educational model that suppresses difference, demands conformity, and prevents students from incorporating their cultural backgrounds as they engage and study the law.

• Such a model would have many failings as a pedagogy, and there are a plethora of reasons to abandon it.

Students of color face additional pressures to assimilate in an institution administered primarily by upper-class whites and a student community whose norms and habits are more reflective of their white peers.

• Similarly, there are many overlapping reasons to train people to avoid these conformist, traditionalist, white-dominated, upper-class organizations. We're trying to do that here, and you appear in that context to be trying to figure out how one particularism can be used to justify what a broad coalition can adopt for a variety of equally-compelling reasons.

• If so, then it appears to me that the system requires change for a variety of reasons, which it would not require one to have any particular theory about diversity or its value to hold in sufficient density to make the direction of reform a matter of consensus.

The most problematic feature about law school, though, is that it leaves no room for students to engage their own unique backgrounds as valuable referents in their study of the law.

• But no, that wouldn't be good enough. Your particular concern amidst all the other things wrong with the mode of education you've described above should be acknowledged as the most important, even more important than everything else that is wrong for everyone else. Otherwise, presumably, the guy you could be vehemently agreeing with and doing something alongside to change both of your conditions of life, becomes wrong, perhaps is even an adversary. That's how political coalitions are fractured. The frequency with which they fracture along this potential line of division--between those seeking social liberation for all and those seeking an end to discrimination against some--explains why ruling classes find minority-rights movements so useful in splitting opposition and eliminating the threat of real revolution.

With the exception of this course, students spend most of their time reading court opinions, policy articles and fact patterns that have little relevance to them as individuals. Amidst the outlining, note-taking and preparation for exams, one’s cultural uniqueness quickly becomes irrelevant. The situation is particularly problematic for students of color as they are forced to shelve their cultural identities in an institution administered primarily by wealthy whites and a student community whose norms and behavior more closely approximate those of their white peers. Not surprisingly, many students of color speak of having to operate within two different worlds – the person they are within the comforts of a support network (assuming one exists) and the person they are outside of it.

• So do working-class "uncolored" students, if you listen to what they have to say. So did Jews and European "uncolored" Catholics until the middle of last century. Perhaps a little more historical perspective would permit a clearer exposition of and therefore a clearer answer to the objection that you're particularizing the general struggle along an axis of constructed identity, thus dissipating the unity that would enable triumph?

• No, this criticism begs the essential question of how to teach well by confusing it, and the equally essential question of how to grow up to make justice, with the almost equally essential question of how to deal with particular resentments among the parties whom injustice aggrieves.

While admissions programs geared towards recruiting more students of color might seem like the ideal solution, such policies will not engender greater diversity so long as students’ stories, values and interests have no relevance to their academic lives.

• I don't know whether this statement is true; probably it isn't. But it seems to me completely irrelevant. You needed to show a line of argument to which this step would be relevant.

Also, given how entrenched the current law school model has become (as well as the political and private interests attached to it), it is not likely that the administration will make any changes to encourage students to more actively engage their cultural backgrounds.

• What happens in classes is about teaching. Why are you talking about some so-called "administration"?

It is not clear to me, moreover, whether such a duty should even lie with the school, whose primary function is to bestow professional skills to future attorneys. One need only guess as to how effective administration-led events such as ‘Asian Heritage Week’ would be at promoting actual diversity.

• I don't have enough experience with Asian Heritage Week to know. I would expect any such thing to be pretty much total bullshit, even if "Asian" didn't strike me as a pretty idiotic category, given that what Finnish and Israeli and Korean and Sinhalese and Han and Abkhaz and Kurdish and Persian and Russian and Keralite and Singaporean persons have in common that also distinguishes them from everyone else on earth is basically impossible to name. But if we are trying to use our intelligence to devise better means of helping people grow up to become wise and courageous in the making of justice, why would we ever spend a nanosecond talking about such tripe?

• Sure. But what is that an argument about? Has someone suggested disestablishing or otherwise interfering with such groups, either because they are not useful support networks or for any other reason? If someone has been using derision, in particular on the basis that such organizations reinforce division, and if you really think there is something to be gained by arguing with fools, you can meet the derision, directly, with cogent argument. But this is not that argument, and I see no reason for it to be here at all.

Moreover, such groups provide critical opportunities for minorities to make their cultural identities meaningful in a way that the study of law does not. For example, students of color often spearhead initiatives that are specific to their respective communities, thus engaging their backgrounds directly as they advance their interests within the law.

• What's that an example of? That would most certainly happen whether there were identity organizations around or not.

Such efforts demonstrate to students that their ethnic backgrounds are both relevant and even advantageous as they evolve into future attorneys. In turn, students will likely develop alternative viewpoints and career interests as they progress through law school, a process which other students, faculty and administrators all stand to benefit from in the long run.

• Likely? That judgment, in the paper's conclusion, doesn't have any predicate: nothing you've said makes the outcome likely. You haven't adduced any data or offered any reason; it's just an announcement. If that's what thinking about teaching requires, just making up likelihoods, it's really hard to figure out why everyone is getting it so wrong.

• It seems to me you've made a powerful argument against your thesis. You've shown pretty clearly, I think, that the prescription for changing how we teach is pretty much the same whether you're a member of the "uncolored" population or not. The consequences of that demonstration it seems to be your fixed purpose not to be caught recognizing.

• Hey Ricardo, I created a separate topic for your second paper so our table of contents don't overlap (it might be confusing to readers in determining which paper is yours). The new link can be found here. Hope that helps!

The Utility of Merging Academic Discourse and the Functional Approach in enabling in people the willingness to recognize the realities of race and to act against racial inequality

The Functional Approach Appears Better Suited than Academic Discource in addressing the realities of race and addressing racial inequality

As a student, I have always prided myself on my ability to apply frameworks of analyses to “racial projects” at the individual and macro-level. Two months ago, however, I found myself in San Francisco’s drug court witnessing a deep racial divide separating the room: the white judge, sheriff, stenographer and prosecutor on one side, and the deep sea of black and brown seated at the other. It occurs to me now that I had processed the entire scene as an experience with race itself, touching off a fervent desire to do something to change the racial fault lines. Whether the courtroom experience was actually a product of “institutional racial hegemony” or some other theoretical abstraction, however, made no difference to how I felt in the courtroom. My familiar theoretical frameworks for analyzing race seemed ineffectual; my desire to mobilize was driven simply by witnessing a powerful racial moment with my own two eyes.

Few topics of sociological, economic or political importance have been subject to as much intellectual and legal discourse and postulation as race. Its treatment has assumed theoretical labels of “political race”, “racial formation”, “racial essentialism” and so on. However, academic discourse on race and its promise of a more egalitarian future fails in large part to capture the reality of what race means, how it operates in people’s lives, and how best to mobilize efficacious social action.

Take racial profiling, for example. If we see a cop unreasonably abusing and detaining a juvenile black, does it matter whether one labels this an individualized expression of a stereotype (colorblindness) or the reinforcement of hierarchies of privilege (race-consciousness)? Resolving the debate certainly does not help the juvenile, who ends up in prison regardless of how we codify his experience. Even from the standpoint of the enraged observer, the reality that she has experienced race in a way that solidifies her conviction to fight racism is not adequately captured by some abstract theory of racial progressivism.

If “a thing is what it does”, it seems obvious to me that racism cannot be “explained away” by some morally neutral theory about social organization. Effective opposition to racial inequality is defined by the actions taken to confront and ameliorate the injustices. Towards this end, the functional approach appears better suited than toothless academic discourse.

Material Deficiencies in the Academic Discourse on race and the Functional Approach make each Inadequate tools for addressing racial inequality

Proponents of academic discourse on race believe that it represents an essential tool in promoting greater racial equality. Two arguments readily present themselves: First, it exposes and generates public opposition to disingenuous proxies for racial discrimination that are usually cloaked in so-called colorblind policies. Second, it generates quantifiable and verifiable data that form the basis for remedial laws and public policies.

One such proponent is John Payton, the Director Counsel of the NAACP Legal Defense and Education Fund. In his keynote address at the BLSA Paul Robeson Conference this semester he argued that law students and practitioners should stimulate discussion on the need to maintain the preclearance requirements imposed on certain jurisdictions in southern states by the Voting Rights Act of 1965. Such discourse illuminates the barriers erected to minority voters by changes in election law and voting venues of the covered jurisdictions. Similarly, in Brown v. Board of Education 347 U.S. 483 (1954) the argument that maintaining racially segregated schools ensured equal educational experiences was significantly undermined by sociological studies qualifying and quantifying the negative self-perception of black children in their own school environment in contrast to white children. Discourse on the pernicious effects of racial inequality produced evidence that contributed significantly to remedial laws.

However, functionalists can legitimately point out that arguments for the maintenance of the preclearance requirement reinforce the notion that minorities won’t stop facing discrimination in voting until people lobby their legislators to change the invidious laws. Similarly, the limited efficacy of remedial laws is demonstrated by the fact that for several years after the Brown decisions many southern states defied with virtual immunity the Court’s order for immediate desegregation. Moreover, the disparities in resource allocation between secondary schools with predominant minority populations vis-à-vis those with predominantly white populations persist today with regressive prospects for the social mobility of poor minorities.

Even so, the functional approach also has its limitations. Primarily, those who do not view racial inequality as a problem will not care enough to choose to act against it. Alternately, another person sitting in the gallery of that San Francisco drug court may not have seen the clear racial divide as I did because nothing in their background sensitizes them its reality, so naturally they see no need to act against it. The functional approach is balanced precariously on the assumption that the capacity and willingness to recognize the complexities of race lie within most people’s psyche.

Reinforcing Academic Discourse with the Functional Approach offers a good start to remediating problems of race

One vexing issue remains how to get people to acknowledge and act against racial discrimination? Interacting with minorities may be the most powerful tool for disabusing some people of their racial prejudices. But others can interact with minorities without consciously recognizing how their actions and inactions implicitly acquiesce or affirmatively contribute to racial discrimination. Perhaps exposure to discourse on race may at least sensitize such people to the socioeconomic and political realities undergirding the problem and their role in not perpetuating it.

Ultimately, the debate on whether academic discourse or the functional approach better reflects the experiences of race and remediates inherent inequalities may be immaterial. Academic discourse fails if it does not result in people acting. Similarly, people’s actions may fail to the extent that they merely give token recognition to racial equality while maintaining their prejudices. Although seemingly pithy, a symbiosis of intellectual and legal discourse reinforced with a persistent call for personal accountability in arresting racial inequality on micro and macro social level appears to be a good start. Admittedly, the difficulty and complexity of the slow march towards that synergy is captured by the racial division of that San Francisco courtroom in a country that elected a biracial man for president.

• Though I found your thoughts to be well made, I take issue with the view that racial frameworks are meaningless and desire to seek a remedy. Racial theorists do not necessarily function to provide microwave-ready solutions to the problems of racism. As you yourself admitted, race is deeply entrenched in our society and the way it operates in our lives is not always as startling as being a Black man pulled over due to racial profiling. Race theorists are able to bring attention to the themes that connect our everyday experiences and encourage others to think more critically about society and one's role in it. These frameworks stimulate thought, passion, and yes, even the social action that you spoke of. The complexity of racism is so vast that to take action without recognition of the source of the problem would be foolhardy and would only create a small, quick fix to a pervasive problem. Now, I'm not saying you are entirely wrong. I do agree that there is a point where talking will only get you but so far, however, to devalue the purpose of race scholarship is an unfair valuation of that body of work. Scholarly writing may not help the juvenile facing a prison sentence but acting blindly without a full recognition of the problem can prove to be a disservice as well. Your piece was very well written, thought provoking (clearly), and as a former Africana Studies major, it made me step back and think "Well, why DID I decide choose to study that particular field?". I don't argue against the main conclusion of your argument but just invite you consider that even though analytical frameworks on race don't provide easy answers or instant solutions to everyday problems, they nonetheless, have a value that shouldn't be so quickly admonished.

The Illusion of Diversity and the Role of the Ethnic Interest Group

Driven by ranking methodologies that score schools based on the amount of minorities that matriculate, law schools have been working furiously to recruit students of color into their ranks. Special ‘diversity’ initiatives are crafted to publicize retention efforts and emphasize the value of diversity in a dynamically evolving, ‘global’ legal profession. Though the ‘advantages’ that come with exposure to brown, black and yellow faces in an American legal industry that is actually resistant to globalization seem dubious, schools openly tout the idea that a more diverse student body will lead to divergent viewpoints toward the law. These differences in turn will 1. enrich the degree and scope of collaboration across the student body, 2. foster more varied and nuanced approaches to the law, and 3. provide opportunities for students to build lasting connections with, and learn from, those significantly different from themselves. The admissions page of one law school, for example, describes its commitment to diversity as such:

Exposure to diverse ideas and viewpoints forces students to think critically about their own beliefs — to question and challenge them. Capital Law School creates a diverse and supportive environment where the exchange of ideas is free-flowing and valued.

However, the supposed gains to be achieved from these diversity initiatives often go unrealized in an educational model that suppresses difference, demands conformity, and prevents students from incorporating their cultural backgrounds as they engage and study the law. Students of color face additional pressures to assimilate in an institution administered primarily by upper-class whites and a student community whose norms and habits are more reflective of their white peers.

The Diversity We Get

Despite a steady influx of minorities, a cursory examination of the law school community reveals anything but a place where the ‘exchange of ideas’ is dynamic and ‘free flowing’. Formulaic methods of teaching, uniformity in subject material and a grading system that pits students competitively against each other rather than collaboratively with each other creates a homogenous learning experience, flattening the very differences that make students of color valuable in the first place. The Socratic Method, which supposedly improves ‘critical lawyering skills,’ provides minimal room for alternative viewpoints and encourages tautological argumentation that is staged, uncreative and rigidly constrained. Exams are graded according to a rubric designed not for innovative thought but for cost-effective administration. Moreover, an exhaustive 1L workload forces students to spend the majority of their time either in the law school or studying, creating an insulated learning environment that minimizes engagement and thoughtful collaboration with other students. Not surprisingly, the average law student receives a streamlined and uniform legal education conspicuously lacking in diversity. The familiar saying of “1L year they break you, 2L year they work you, 3L year they bore you” rings true for nearly everyone.

The most problematic feature about law school, though, is that it leaves no room for students to engage their own unique backgrounds as valuable referents in their study of the law. With the exception of this course, students spend most of their time reading court opinions, policy articles and fact patterns that have little relevance to them as individuals. Amidst the outlining, note-taking and preparation for exams, one’s cultural uniqueness quickly becomes irrelevant. The situation is particularly problematic for students of color as they are forced to shelve their cultural identities in an institution administered primarily by wealthy whites and a student community whose norms and behavior more closely approximate those of their white peers. Not surprisingly, many students of color speak of having to operate within two different worlds – the person they are within the comforts of a support network (assuming one exists) and the person they are outside of it.

What’s the Solution?

All of this criticism, of course, begs the essential question – how does one create a learning environment that actually makes diversity relevant in a meaningful way? While admissions programs geared towards recruiting more students of color might seem like the ideal solution, such policies will not engender greater diversity so long as students’ stories, values and interests have no relevance to their academic lives.

Also, given how entrenched the current law school model has become (as well as the political and private interests attached to it), it is not likely that the administration will make any changes to encourage students to more actively engage their cultural backgrounds. It is not clear to me, moreover, whether such a duty should even lie with the school, whose primary function is to bestow professional skills to future attorneys. One need only guess as to how effective administration-led events such as ‘Asian Heritage Week’ would be at promoting actual diversity.

A Possibility

Enter the Ethnic Student Organization. While groups such as APALSA and BLSA have been derided for balkanizing the student community and reinforcing racial divisions, they represent easily accessible support networks from which students of color can re-connect with and preserve their ‘cultural selves’. Such organizations prove immensely valuable in helping students of color resist the pressures of conformity and retain a sense of community, reinforcing the shared stories and values that make them diverse in the first place.

Moreover, such groups provide critical opportunities for minorities to make their cultural identities meaningful in a way that the study of law does not. For example, students of color often spearhead initiatives that are specific to their respective communities, thus engaging their backgrounds directly as they advance their interests within the law. Such efforts demonstrate to students that their ethnic backgrounds are both relevant and even advantageous as they evolve into future attorneys. In turn, students will likely develop alternative viewpoints and career interests as they progress through law school, a process which other students, faculty and administrators all stand to benefit from in the long run.

• In the end, I have the feeling that this essay is a complex and subtle attempt to win an argument against no opposition. It's not clear to me that anyone is motivated to disagree with your conclusions (I certainly am not), and it's not apparent to me that anything has been said or thought in the course of the essay that would justify disagreement. Your basic attitude appears to be that a great deal of disputing has gone on in the past, most or all of which is irrelevant; the conclusions which follow from your "functional" approach don't seem to be at odds with anything except a "I don't see no racism around here" position, which we are almost all likely to reject out of hand. So perhaps the most useful step you could take in improving the paper is to show what objections to your point of view you think are worthy of discussion, and to discuss them.

Criticizing the Discourse Of Race

A colleague once told me that to acknowledge the preponderance of race in everyday life would be the equivalent of a fish realizing that it is surrounded by water. Regardless of our intuitions, theories, definitions, or beliefs, race is an inevitably pervasive element of the American imagination; it is at once a Miner's Canary, The Problem of the Century. Not surprisingly, few topics of social reality have been subject to as much academic discourse and postulation as race. At varying times and depending upon one’s political stance, it has assumed labels of political race, racial formation, racial essentialism and so on. But does academic discourse on race and its promise of a more egalitarian future even remotely capture the reality of what it means to live in a racialized society? Do we even gain anything from studying the metaphysics and politics of race without listening to how it operates in people’s lives? To me, the resounding answer is no.

Framing the Debate: The Example of Colorblindness

Although colorblindness is in no way exhaustive of the academic theatre of race, the debate that continues to rage over it is exemplary of the polarizing dogmas that characterize modern scholarship on race. At present, we see two distinct camps emerging: advocates of colorblindness, who criticize the divisive effects of recognizing race as a social category, and defenders of race-consciousness, who seek to restore the nexus between race and the allocation of resources and power.

Once the trench-lines are dug and the stage is set, a battle of imaginations ensues. Everyday experiences are grouped and then systematically reduced to statistical analysis (e.g., census studies). Stock stories are replaced by stock theories. Committees are formed and arguments are raised about the nature of race, its historical antecedents and whether it is an amalgamation of other social forces – gender, class, culture – or a purely imagined social construct.

The Meaninglessness of Theoretical Superstitions

It is no doubt to me that scholars of race, who construct these frameworks and diffuse their ideas to the masses, are well-intentioned and attuned to the goal of seeking a remedy to a problem that strikes them personally as wrong (racial inequality and stratification). Yet conspicuously absent within the debate over race is not just whether these theories adequately capture the everyday reality of race, but more importantly whether making these inquiries are even worth anything at all. As I think Felix Cohen would see it, constructing abstract “systems” out of the things we see and do on a regular basis are not fruitful inquiries that get us any closer to a more racially inclusive society.

Take racial profiling, for example. If we see a cop unreasonably abusing and detaining a juvenile black, does it matter whether one labels this an individualized expression of a stereotype (colorblindness) or the reinforcement of hierarchies of privilege (race-consciousness)? Resolving the debate certainly does not help the juvenile, who ends up in prison regardless of how we codify his experience. Even from the standpoint of the enraged observer, the reality that she has experienced race in a way that solidifies her conviction to fight racism is not adequately captured by some abstract theory of racial progressivism.

The compulsive need to hammer out some intrinsic quality to race so as to better understand and control its consequences is tantamount to the worst form of scholarly “magic.” And in the never-ending feud to determine which framework more effectively “captures racism”, the science of race becomes tragically detached from the reality of race.

The View from the Ground: Toward a Functional Approach

As a student, I have always prided myself on my ability to apply frameworks of analyses to “racial projects” at the individual and macro-level. Two months ago, however, I found myself in San Francisco’s drug court witnessing a deep racial divide separating the room: the white judge, sheriff, stenographer and prosecutor on one side, and the deep sea of black and brown seated at the other. It occurs to me now that I had processed the entire scene as an experience with race itself, touching off a fervent desire to do something to change it. Whether the event was actually a product of “institutional racial hegemony” or some other theoretical abstraction, however, meant no difference to how I felt in the courtroom. The desire to mobilize was driven simply by the witnessing of a powerful racial moment with my own two eyes.

The problem with racial discourse is not just a philosophical one. Magical theories on racial “systems” are often accompanied by equally abstract principles about how best to mobilize social action and effectuate policy. It seems to me here that Robinson’s insights are particularly useful. Perhaps instead of resorting to theoretical superstitions to resolve our insecurities about the future of race, we should instead be taking a trip to the jailhouse ourselves; to put our ears to the ground and actually listen to how people are experiencing race.

Conclusion

If “a thing is what it does”, it seems obvious to me that racism cannot be “explained away” by some morally neutral theory about social organization – it is at its heart something that affects us deeply, incites our anger and drives us to action. The Civil Rights movement has been subject to endless anthropological and sociological data-mining, none of which seem to recognize the simple reality that people saw something wrong and decided to band together to change it. I very much doubt, for example, that Martin Luther King was driven to action by some abstract theory about how best to envision the future of race in America. More likely, he heard the stories of those around him and made the simple but noble decision that something needed to be done. For those of us who want to challenge racism, perhaps we should be doing more of the same.

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