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

AuthorAlfieri, Anthony V.
PositionIII. The Influence of Postracialism on Black Civil Rights Lawyers through Conclusion, with footnotes, p. 1530-1558

In the post-civil rights era, black scholars such as Professor William Julius Wilson have highlighted class differences that they see as separating poorer Blacks from middle-class and upper-class Blacks in significant ways. As Wilson once asserted, "It is difficult to speak of a uniform black experience when the black population can be meaningfully stratified into groups whose members range from those who are affluent to those who are impoverished." (189) Additionally, the Pew Research Center recently released survey results that revealed a growing gap between the values of middle-class Blacks and poorer Blacks. Indeed, thirty-seven percent of all Blacks indicated that black people could no longer be thought of as a single race because of the diversity within the community. (190) Professor James Forman, Jr., contends similarly that "[c]lass differences have always existed within the black community--but never on anything approaching today's scale." (191) While noting that factors such as unemployment are extremely high for young black men and that "[i]n some respects, blacks are no better off than they were in the 1960s" but instead "are much worse off," Forman highlights the fact that the black middle class has grown significantly: black families who have an income of $100,000 a year or more increased from two percent of black households in 1967 to ten percent in 2011. (192)

Such increasing divisions within the black population arguably have significant implications for black civil rights attorneys' decisions and litigation strategies and for the degree to which they are perceived as representing the entire race. Scholars such as Forman have asked whether black elites, especially black practicing attorneys and law professors, have set an agenda to address racial discrimination in the criminal justice system that comports more with their own experiences--for example, by focusing on racial profiling, which "[a]ll blacks confront ... regardless of age, dress, occupation or social station," rather than on the concerns of a larger and more vulnerable portion of the black population, such as the mass incarceration of poor, uneducated Blacks. (193) Forman argues that the civil rights community's focus on more "universal" problems for Blacks, such as racial profiling or the societal racism and discrimination that warrant affirmative action policies, works to the disadvantage of those in the black community whose class status makes them vulnerable to mistreatment. Forman further inquires, "If prison is reserved for less-privileged blacks, what implications does this have for the idea that blacks share a linked fate that binds them across socioeconomic classes?" (194) Similarly, Professor Michelle Alexander has criticized the emphasis on legal work that tends to address the interests of relatively more privileged Blacks, such as affirmative action, instead of legally challenging the structures and policies that have resulted in the mass incarceration of black men. (195)

In all, what has become undeniable is that, unlike previous generations of civil rights lawyers, this current and the next generation of civil rights lawyers are not working within a context in which there is a completely totalizing structure of domination against Blacks. As Carbado and Gulati tell us, in today's world, some Blacks, even if only a limited number, will certainly be included within circles of power and opportunity. (196)


In this Part, we consider how learning from the civil rights efforts surveyed in Representing the Race and Acting White? may help to rechannel the current study and practice of civil rights law in more experimental, activist directions. The two books investigate the changing meaning of color and race in the evolution of the civil rights movement from the Jim Crow era through the election of President Obama.

Mack, Carbado, and Gulati demonstrate that new directions in civil rights advocacy and research may stem from the adoption of a flexible, race- and identity-conscious vision of community-based empowerment that looks to ally with grassroots organizations and reach multicultural populations. Alliances among diverse constituencies require a vision sufficiently flexible to encompass the contingencies of race, ethnicity, immigrant and citizenship status, disability, language, gender, sexuality, and other categories of group difference-based identity, as well as the stratifications of class and socioeconomic status. Representing the Race and Acting White? challenge civil rights academics and advocates to transform their understanding of representation through a fuller appreciation of color, race, and community in history and practice. Together, they aspire to teach a new generation of civil rights lawyers and scholars about the breadth of identity and the cultural power of racial community in contemporary American law and society.

We build on the pathbreaking historical and cultural studies of Mack, Carbado, and Gulati to offer an alternative practice of color, race, and community in legal education (197) and advocacy. (198) We do so in two ways. First, we discuss new strategies that can help the civil rights community begin to get the public in the United States to understand the centrality of race and racism (and other forms of prejudice) to our history as well as the continuing prominence and operation of race in our everyday experience. Second, we explore new teachings, methods, and tactics that can inspire the future generation of civil rights lawyers of all races (1) to identify for themselves and become comfortable with their individual roles in working toward true equality in racial and other civil rights-based movements; (2) to devise tactics for how to object, both explicitly and subtly, to inappropriate uses of race in the justice system, and specifically in the courtroom; (3) to avoid their own inappropriate uses of race in their representations that may be more harmful to the interests of their clients and their communities in the long run; and (4) to reintegrate narratives and understandings of race that not only enable success in the courtroom, but also keep alive the perspectives that too often get marginalized or go unnoticed in the law. These strategies, we contend, can help to train the next generation of civil rights lawyers.

  1. Lawyer and Politician: The New Civil Rights Lawyer

    First and foremost, preparing the next generation of civil rights lawyers-of all races-requires that we teach such aspiring lawyers how to win the battle of rhetoric and politics as much as we teach them how to read, analyze, and apply the law; draft supporting documents; and make arguments to judges and juries. They must be as immersed in the language of public policy and political advocacy as they are in understanding and applying the law. In other words, they must learn not only to win their campaigns within the courtroom, but also their campaigns before the general public.

    Indeed, Critical Race Theorists have long argued that legal arguments must be framed for and told to wider audiences. Scholars such as Professor Richard Delgado have highlighted the need to use tools such as narrative and storytelling to make the law more accessible.199 Similarly, feminist legal theorists such as Professor Kathy Abrams and gay rights scholars such as Professor William Eskridge also have pointed to narratives as a tool for speaking to a broader range of people and for inciting change. (200) Finally, law and literature scholars such as Professor Peter Brooks have emphasized the importance of studying "perspectives of telling," noting that "[n]arratives do not simply recount happenings; they give them shape, give them a point, argue their import, proclaim their results." (201)

    The retrenchment of civil rights policies since the early 1980s has made clear to those in civil rights communities that the effective telling and retelling of stories and arguments are essential for the Left to win what Professors Michael Omi and Howard Winant have called "racial projects." "Racial projects," Omi and Winant write, "do the ideological 'work' of making" links "between structure and representation." (202) One successful racial project, for example, has been the conservative effort to establish colorblindness--the notion that race "can play no part in government action" and that "[n]o state policy can legitimately require, recommend, or award different status according to race"--as the ideal. (203) As Omi and Winant explain:

    A racial project is simultaneously an interpretation, representation, or explanation of racial dynamics, and an effort to reorganize and redistribute resources along particular racial lines. Racial projects connect what race means in a particular discursive practice and the ways in which both social structures and everyday experiences are racially organized, based upon that meaning. (204) In the war of racial (and other identity-based) projects in society, the progressive, civil rights-oriented racial project has sustained serious losses, and the ability of conservatives to both frame and control the language and arguments in these debates has played a critical role in such losses. Professor William Julius Wilson argues, for example, that part of the Left's strategic downfall in the battle over affirmative action policies has been its failure to frame affirmative action as an "opportunity-enhancing" policy, of which polls show a majority of Whites approve, instead of as a "racial preference" program, which the majority of Whites tend to reject. (205)

    To become more successful in the war of redistributive projects, the next generation of civil rights lawyers must become just as savvy as their opposition at creating, developing, and ultimately winning its racial or other necessary projects. In developing this rhetoric, moreover, the civil rights lawyers of this...

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