Critical race praxis: race theory and political lawyering practice in post-civil rights America.

• Author: Yamamoto, Eric K.
• Position: Symposium: Representing Race

At the end of the twentieth century, the legal status of Chinese Americans in San Francisco's public schools turns on a requested judicial finding that a desegregation order originally designed to dismantle a system subordinating nonwhites now invidiously discriminates against Chinese Americans. Brian Ho, Patrick Wong, and Hilary Chen, plaintiffs in Ho v. San Francisco Unified School District,(1) represent "all [16,000] children of Chinese descent" eligible to attend San Francisco's public schools.(2) Their high-profile suit, filed by small-firm attorneys, challenges the validity of a 1983 judicial consent decree desegregating San Francisco's schools. Approved in response to an NAACP class action charging educational discrimination by whites, the consent decree mandates racial and ethnic diversity in student bodies and sets for each "magnet" school a forty-percent cap for students from any racial or ethnic group.(3) Early on, Chinese Americans benefited from the decree's diversity mandate, substantially increasing their enrollments.(4)

The Chinese American plaintiffs now seek to exceed the forty-percent cap by claiming that the cap constitutes unconstitutional race preferencing for those less qualified, particularly African Americans and Latinos. Discrimination is demonstrated, the plaintiffs allege, by the denial of magnet school admission to some Chinese American students despite their entrance test scores, which are higher than those of some matriculated students of other races.(5) They observe that this form of exclusion is consistent with California's history of harsh discrimination against Chinese Americans.(6) Using ideas refined by neoconservative race scholars, their attorneys frame the suit in terms of individual rights, advance legal arguments of "meritocracy" and "colorblindness,"(7) and seek to enjoin the school district "from operating under its system of racial classification and quotas."(8) Some Chinese American supporters more directly express perceptions of underlying racial-cultural differences: formal racism in the system has ended; Chinese Americans have elevated themselves as a group through ability and cultural values despite hardship; African Americans have had the benefit of the decree for ten years "and black students' performance is still bad."(9) Some plaintiffs and their supporters imply that Chinese American educational superiority -- as measured by test scores -- is at least partially a reflection of cultural if not intellectual inferiority of African Americans and Latinos.(10)

Plaintiffs' strategy of distancing Chinese Americans from African Americans is reflected not only in statements of supporters but also in plaintiffs, legal filings. In those filings, plaintiffs' attorneys assert that Chinese American students' interests are contrary to the interests of African American students represented by the NAACP and that the NAACP "did not adequately represent" Chinese Americans in the original desegregation action.(11) The attorneys also contend that the defendant NAACP "is a proponent of the status quo, while Plaintiffs consider the Consent Decree a violation of their right to equal protection."(12) The NAACP, represented by a large law firm and a civil rights litigation organization, publicly opposes the suit and serves as the primary defender of the consent decree.(13)

Chinese American political and cultural organizations are sharply divided. Some offer strong support for the plaintiffs and stress the value of individual achievement and educational opportunities for Chinese American children.(14) Others voice strident opposition, find no evidence of school-choice discrimination against Chinese American students (Chinese constitute by far the single largest group in magnet schools), question the framing of "merit" solely on the basis of an entrance test, and emphasize continuing systemic impediments to socio-economic advancement by African Americans, Native Americans, Lateness, and some Asian Americans.(15)

Civil rights lawyers, Asian American organizations, and California politicians also diverge in their responses. Those supporting the suit talk about quotas, injustice, and civil rights. A spokesperson for the Asian American Legal Foundation indicated that Chinese Americans "will not stand for injustice and inequality in our community."(16) The lawyer delivering the keynote address at the plaintiffs' fundraiser declared that "[w]e are on the right side of civil rights" and "we say 'never' to racial quotas on children."(17) Legal supporters also talks about merit and racial differences: the NAACP "opposes us, but dropout rates for African American students have never been higher."(18) Unsurprisingly, neoconservative politicians embrace these positions, arguing affirmative action's harm to Asian Americans as a ground for jettisoning affirmative action altogether.(19)

Lawyers and community leaders who oppose the suit talk about practical consequences. If the plaintiffs succeed, a likely immediate consequence will be more Asian American and white public school admittees with significantly fewer African Americans and Latinos.(20) A likely longer-term consequence may be the legal dismantling of all race-based affirmative action programs in the state.(21) Additionally, the law may well affirm in the public mind the image of Asian American superiority and African American and Latino inferiority. In light of probable consequences, a plaintiffs' "victory" may well exacerbate African American and Asian American tensions already heightened by negative stereotypes held by some members of each group about the other,(22) by intergroup economic competition,(23) and by intergroup justice grievances.(24)

Interestingly, progressive race theorists have not joined lawyers and activists behind the scenes or in the litigation trenches.(25) Nor has their work, which critically interrogates questions of race, culture, and law, informed the framing, concepts, or language of the suit.(26) Noticeably absent from litigation strategy and legal discourse is critical inquiry into the connection between law and racial hierarchy, including Asian Americans' purported role as "middle minority" buffers in the continuing subordination of African Americans; the political construction and implications of meritocracy and colorblindness in the affirmative action debate, including the meaning of objectivity and race consciousness; the dissonant understandings of "equality-under-law" (equality-of-opportunity, equality-of-result, and anti-caste); and the sharp limitations of legal process for subordinated communities seeking racial justice, including the general failure of legal norms, methods and procedures to foster intergroup healing.(27)

Also noticeably missing from the legal filings, oral arguments, and court rulings, which focus on specific procedural or doctrinal issues, is critical inquiry into the interminority dynamics at the heart of the case. One aspect of those unstated dynamics is intergroup power. Is affirmative action, as neoconservatives argue, "discrimination against Asians in order to protect blacks"(28) -- making Asian Americans the "new victims" of racism and African Americans, and to a lesser extent Latinos, the "new perpetrators?" Or is this construction of interracial conflict a mask for continued white supremacy? A second aspect of unstated dynamics is the fit of civil rights law. Is the traditional antidiscrimination-law scheme workable for multiracial conflicts in post-civil rights America? Or is it necessary to remake the white on black jurisprudential paradigm? A third aspect is context. How do the volatile mid-1980s Asian American admissions controversy(29) and the mid-1990s California Civil Rights Initiative and the University of California affirmative action repeal(30) contextualize the intergroup issues in Ho?(31) And why do intergroup issues of apparent legal and political import, scrutinized by race scholars, appear to evaporate in Ho amid lawyerly formulation of legal argument and strategy?

INTRODUCTION

The Ho litigation, I suggest, reveals a disjuncture between progressive race theory and frontline political lawyering practice. In one realm, undertaking critical inquiry, progressive scholars offer theoretical insights about Ho's pressing socio-legal issues. In another realm, amid growing criticism of race-conscious affirmative action, the NAACP and state's lawyers defend a race desegregation order both in court and in the arena of popular opinion. Yet, with much to share and with racial conditions in the balance, progressive theorists and lawyers seemingly fail to connect in meaningful ways. The disjuncture reflects something more than scholars coldly scrutinizing judicial opinions and lawyers heatedly struggling through the immediacy of adversarial dicision-making. Something more is at play.

The Ho litigation also reveals another kind of separation influencing political lawyering practice: an intensifying dissociation of law (as it conceives of justice) from racial justice (as it is experienced by racialized groups). Ho illuminates three dimensions of this dissociation through its awkward embrace of a constricted civil rights law paradigm: First, the Chinese American plaintiffs appear to ignore the historical linkage of law and cultural representations to legalized racial oppression. They support their civil rights claims to equality under the law by disparaging other "less deserving" racial groups. Second, they uncritically employ rhetoric and assert claims shaped initially by African American civil rights struggles and recast later by neoconservative politicians and jurists to undermine minority claims of institutional racism and to sanction white claims of "reverse discrimination." In doing so, the plaintiffs generate confusion and anger among African Americans, Latinos, and other Asian Americans about the purpose of antidiscrimination laws and about Ho's social...