Next-generation civil rights lawyers: race and representation in the age of identity performance.

• Author: Alfieri, Anthony V.
• Position: Introduction to III. The Influence of Postracialism on Black Civil Rights Lawyers, p. 1484-1529

BOOK REVIEW CONTENTS INTRODUCTION I. CIVIL RIGHTS LAWYERS AS REPRESENTATIVE MEN OF THE COLORED RACE A. Race, Identity, and Representation: On Being a "Representative Negro" B. Racial Identity in the Public Space of the Courtroom 1. Courtrooms as Segregated Public Spaces 2. Civil Rights Courtrooms C. Black Women Lawyers D. Prewar and Postwar Race and Representation 1. The Trial of Angelo Herndon 2. Postwar Integration II. THE IMPACT OF "ACTING WHITE" ON TODAY'S BLACK CIVIL RIGHTS LAWYERS A. From "Representing" to "Performance": Articulating the Modern Demands of Identity Work B. The Umbrella of the Double Bind, Dual Representation, and Double Consciousness: The More Things Change, the More They Stay the Same? III. THE INFLUENCE OF POSTRACIALISM ON BLACK CIVIL RIGHTS LAWYERS A. Who Is Today's Civil Rights Lawyer? 1. The New Civil Rights Lawyer? 2. The New Civil Rights? B. Is There a New Black? 1. The Changing Meaning of Black Success 2. Representing the Race(s) IV. STRATEGIES FOR THE NEXT GENERATION OF CIVIL RIGHTS LAWYERS A. Lawyer and Politician: The New Civil Rights Lawyer B. Civil Rights Lawyers in Black and White: Next-Generation Majority and Minority Representation in the Courtroom and Beyond 1. Representing the Race When One Is Not of the Race 2. Objecting to the Exploitation of Race and Exploiting Race a. Objecting to Race b. Exploiting Race 3. Reintegrating Race CONCLUSION Representing the Race: The Creation of the Civil Rights Lawyer. By Kenneth W. Mack. Harvard University Press, 2012.

Acting White? Rethinking Race in Post-Racial America. By Devon W. Carbado & Mitu Gulati. Oxford University Press, 2013.

Americans have always needed--and still need--the representative Negro, even though they have always been unclear about exactly what that meant.

--Professor Kenneth Mack (1)

Being an African American in a predominantly white institution is like being an actor on stage. There are roles one has to perform, storylines one is expected to follow, and dramas and subplots one should avoid at all cost. Being an African American in a predominantly white institution is like playing a small but visible part in a racially specific script. The main characters are white. There are one or two blacks in supporting roles. Survival is always in question. The central conflict is to demonstrate that one is black enough from the perspective of the supporting cast and white enough from the perspective of the main characters. The "double-bind racial performance" is hard and risky. Failure is always just around the corner. And there is no acting school in which to enroll to rehearse the part.

--Professors Devon Carbado and Mitu Gulati (2)

INTRODUCTION

This Book Review addresses two important new books: Professor Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (3) and Professors Devon Carbado and Mitu Gulati's Acting White? Rethinking Race in Post-Racial America. (4) Both books provide valuable insights into how best to train the next generation of civil rights lawyers. By now, it is nearly axiomatic that civil rights lawyers serve an important expressive and instrumental function in the enforcement of constitutional and statutory entitlements and in the advancement of racial and gender equality. Over time, civil rights lawyers have come from the ranks of private and nonprofit law firms as well as academic and government outposts. Their work spans more than a century of American history and has generated a substantial body of academic literature across multiple disciplines.

In light of this rich and significant history, it is surprising to discover the scarcity of contemporary writing on the education and training of civil rights lawyers. Read closely, neither the growing academic literature of the civil rights movement nor the current theory/practice literature of clinical legal education devotes meaningful energy or attention to actually teaching civil rights lawyers how to address new forms of discrimination and inequality in our increasingly diverse, multiracial society. The two books at hand provide the promising opportunity to do exactly that: to look backward and ahead in order to help steer the next generation of civil rights lawyers.

In Representing the Race, Mack addresses the fundamental question of what it meant for a black civil rights lawyer to be a "representative man" both before and during the civil rights era. According to Mack, from the mid-1800s to the end of the civil rights movement, black, male civil rights lawyers found themselves trapped in a confounding dilemma. On the one hand, they needed to be as different as possible from other Blacks (5) in order to speak to and gain the trust of Whites. On the other hand, they had to be "as much like the masses of black people as possible" in order to be perceived as "'authentic' ... representative[s]" of their community. (6)

In addition to playing the dual roles of "white" lawyer and authentic black representative, black male civil rights lawyers both before and during the civil rights era also served as living proof of their own arguments about equal rights and equal access for Blacks. (7) For example, as Mack points out, during the antebellum period, a black male attorney like John Mercer Langston (8) personified to "abolitionist-minded whites ... everything that the colored race might become once it threw off the shackles of slavery." (9) Similarly, through their performances in court, attorneys like Charles Hamilton Houston (10) could alter the thinking of judges, adversaries, and others who saw their legal skills and acumen in action. (11) Indeed, it soon became clear that there were strategic advantages to having Blacks themselves argue against practices like educational discrimination, as their own presence became the most important evidence for their claims.

In Acting White?, meanwhile, Carbado and Gulati reveal how race is defined not only by physical markers such as skin color, but also by performance or behavior. They enlarge the concept of color-based identity status to include the notion of "working identity," which encompasses racially associated ways of being, such as how one dresses, how one styles one's hair, and how one speaks. To Carbado and Gulati, decisionmakers across society--for example, employers, judges, juries, and law enforcement officials--make judgments based on racial criteria and expectations. As Carbado and Gulati suggest in Acting White?, a civil rights lawyer's failure to work his identity to match such criteria (that is, to be perceived as acting white or black at the right time and in the right circumstances) can result in interracial and intraracial discrimination and disadvantage for both lawyer and client.

Carbado and Gulati's notion of working identity, as well as their examples of identity in action, provide a useful foundation for exploring the similarities and differences between the functions and symbolic meanings of past and present civil rights lawyers. In particular, Carbado and Gulati explain how people of color communicate the salience of their race and try to avoid or encourage the imposition of racial stereotypes upon them in different contexts--what the two scholars have called "identity performance" in previous work. (12) This concept supplies the base from which we will identify the commonalities between past and present civil rights lawyers' experiences and roles and discuss the important distinctions between the challenges they face. (13)

We will highlight one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to world their identities in ways that make them racially palatable to Whites. Using Carbado and Gulati's theory, we will explain how today's black civil rights attorneys are under the same pressure to earn the trust and respect of Whites, who are still overwhelmingly the decisionmakers in the judicial system, and to do so by performing their identities in ways that make them racially safe.

Next, we will show how the performance of black civil rights attorneys as the representatives of individuals, groups, and communities has become more complicated over time. Specifically, we will explore and analyze three major differences between the experiences of the black civil rights lawyers of the past and the present: (1) the different symbolic meanings that the general public, Blacks, and Whites, depending upon the context, assign to the two different generations of attorneys; (2) the existence of wider divisions within the black population today than in the past; and (3) the heightened visibility and voices of previously marginalized intersectional groups like black women and black gays and lesbians, whose own issues and concerns have helped to bring increased attention to various rights movements related to gender, sexuality, immigration status, and class.

This Book Review proceeds in four Parts. Part I parses Mack's collective biography of a group of black civil rights lawyers during segregation in order to understand traditional notions of what it means to be a "representative man" in civil rights history and practice, including the different meanings of that phrase for early black female lawyers. Part II examines Carbado and Gulati's analysis of the "double bind" that black professionals must face in today's society and, in so doing, introduces the common themes between Representing the Race and Acting White? and their intersecting accounts of race and race relations in American law, culture, and society. Part III draws on Mack's assertions about the dual roles of early black civil rights lawyers who were "representing the race" and Carbado and Gulati's theory of identity performance to explain how the challenges faced by today's civil rights lawyers differ in significant ways from those encountered by earlier generations. Part IV articulates strategies for today's civil rights attorneys that...