Rodrigo's ninth chronicle: race, legal instrumentalism, and the rule of law.

• Jurisdiction: United States
• Date: 01 December 1994
• Author: Delgado, Richard

INTRODUCTION

I was sitting dejectedly in the airport waiting lounge, cursing myself for having taken a winter flight that changed planes in a northern city, when I heard a familiar voice from behind me.

"Professor, is it you?"

I turned. "Rodrigo, for goodness sake! What are you doing here?" A foreign-educated LL.M. student at the famous university across town, Rodrigo had sought me out for career advice nearly a year ago on a return trip to the States.(1) The son of an African-American serviceman and an Italian mother, the brilliant and audacious young scholar saw the United States with new eyes. We had become friends, discussing law and economics, civil rights, essentialism, black crime, and many other subjects over the course of a year.(2)

"I'm just getting back from job interviews. I think I told you I'm on the teaching market. I did four interviews in seven days."(3)

"You must be exhausted," I commiserated.

"Oh, it wasn't so bad," my irrepressible protege replied, "although it went by in something of a blur. I'm afraid I'll get a telephone call from Professor Jones and not remember what school he's from."

"Tell him you enjoyed meeting his colleagues. He may mention a name and that'll ring a bell. The older I get the more trouble I have remembering students' names. But I don't have your excuse--I have them all term long."

"Your students like you, Professor. If you forget an occasional name it doesn't matter. They know you care about them, just as I know you care about me."(4)

"Enough flattery," I said. "Tell me about your trip. My flight was canceled. I've got nearly three hours before the next one.(5) I was just sitting here trying to build up courage to open my briefcase, but I'd much rather talk with you."

"I've got plenty of time. I'm arriving early, having caught a standby flight in the nick of time from Chicago. Giannina's(6) not expecting me till this evening. Can I buy you a drink or cup of coffee?"

"Maybe in a minute. Sit down," I said, indicating the empty seat next to me. "Tell me about your trip."

"Well, as I mentioned, I interviewed at four law schools, all in the Midwest. Next week I'm hitting the Northeast--two in four days. But something interesting happened at the one I left just this morning. If you have a minute, I'd love to tell you about it."

"Please do. As I've told you more than once, I get at least as much out of our conversations as you do. What happened?"

"I was having one of those small group interviews. Four professors and I were meeting in the office of one of them. It was my last one before going to meet the students and the Dean. It really got me going--I've done nothing but think about it the whole flight. It's providential that I met you here. I would have called you in a day or two to talk."

"Was it something that came up during your job talk?"

"Only tangentially. I spoke about the relation of laissez-faire economics and the plight of the black poor, an aspect of my thesis.(7) One professor apparently got the idea that I'm interested in Critical Race Theory, which of course I am, even though my talk didn't touch on that at all. So he had this question ready for me when we met later in the office."

"What was it? The usual one about affirmative action?"

"No, not at all. It was about racial realism,(8) but with a pedagogical twist. You're familiar with the critique of Derrick Bell's work as being too despairing?"

"I am. A number of authors have taken Bell to task for what they consider his undue pessimism, notably Alan Freeman, an otherwise friendly writer, in a review of Bell's first casebook.(9) A few of us have even questioned whether preaching gloom and doom is wise, particularly if it ends up discouraging students from going into civil rights or public interest practice.(10) How did you answer the question?"

"I pointed out that Bell might well be right, and if so, there's little to be gained by holding on to false hopes. But it turned out the professor was making a much more subtle 'as if' argument, questioning whether, even if we thought the condition of Blacks and other minorities of color is unlikely to improve, that is, enjoying only periodic peaks of progress followed by regression,(11) we ought to act as though we believed the opposite. Otherwise we'd be paralyzed. There would be no reason to struggle."

"That is a more powerful version," I agreed. "It reminds me of recent writing about myths and the way society organizes itself around certain beliefs and credos.(12) Even if not literally true, the myths help society run more smoothly."

"I conceded as much, but nevertheless stuck to my position. We had a spirited discussion."

"I wish I had been there. Tell me, how did you defend Bell's thesis?"

"I began by laying it out, beginning with the interest-convergence idea--that Whites will support and tolerate gains for Blacks only when these also benefit them(13)--then traced it through Bell's analysis of Brown v. Board of Education,(14) and finally into its modern form, racial realism."(15)

Just then, the public address system announced the arrival of a flight from Dallas, and I realized we would soon have a planeload of passengers streaming past us. "This area is filling up, Rodrigo. I'd love to hear how you answered the professor's question, which incidentally strikes me as both intelligent and admirable. It lets you show how you would deal with a recurring pedagogical issue.(16) And at the same time it allows you to strut your stuff on an important point of legal theory.(17) That professor had obviously done his homework. Why don't we continue this conversation somewhere else? There's a little noodle shop just down the concourse. It smelled good when I passed by. Could you use a bite?"

"Always," Rodrigo replied. "They didn't feed us much on the flight home--just a tiny, dry sandwich."

I made a sympathetic face and stood up. As we walked in the direction of the restaurant, Rodrigo continued: "The myth question wasn't too hard, at least until I started thinking more about it later. I told the group in the office that minorities and members of the majority group need different myths because they are differently situated. With respect to race, what white people need is hope. They need to believe in black progress, because otherwise they would be consumed by guilt. Most of them have a higher standard of living than ours, longer life expectancy, lower rates of incarceration and infant death, and so on(18)--all directly traceable to slavery and social neglect. Consequently, they fasten onto any indicator of progress for Blacks or other minorities, even during times when our despair, our misery index, is higher than ever. They read somewhere that there are more left-handed Hispanic plumber's apprentices in Ohio than twenty years ago and seize upon that as proof that things are getting better."(19)

"The conservatives aren't consumed by guilt," I pointed out. "They think that if our progress is stalled, it's our fault. We have dysfunctional families or allow ourselves to succumb to a culture of poverty."(20)

"You have a point," Rodrigo acknowledged. "Yet they do hold to a myth of progress-namely, that the race problem has been solved. The playing field is now level, as a result of the 1960s-era reforms, so that today any Black or Latino who is not progressing has only himself or herself to blame."(21)

"So white folks subscribe to and place great stock in the myth of black progress. I agree with you on that. A recent poll showed that black parents believe things are now as bad for black children as at any time since slavery.(22) The same study showed that homicide is the leading cause of death for black youths between fifteen and twenty-four years of age.(23) Nearly half of all black children live under the poverty level, and thirty-four percent of all black teenagers looking for work could not find it, a rate twice that of white teenagers.(24) Nearly half of all black babies are not adequately immunized, and fully sixty-five percent of black adults believe that their kids will be denied jobs because of racial prejudice.(25) Nevertheless, most of our white friends cannot be made to see that things are getting worse, not better for us. But you mentioned that there is a counterpart myth on our side of the equation."

"Oh, yes. Whites need the myth of civil rights progress to be able to function. We, by contrast, need a stone-cold sober assessment of our chances, even if they are not very good.(26) For just as Whites need guilt-avoidance, we need to avoid self-blame. For us, the paralyzing mental process is internalization of the terrible images society has disseminated about us through the ages--unintelligent, lazy, sexually lascivious, and so on.(27) We also need to avoid connecting our low estate--our poverty, high crime rate, high degree of social pathology, and so on--with ourselves and our own efforts. We need to keep in mind that our current condition is the direct result of our subordination. For us, this bleak realization is healing, is psychically necessary, just as the more sanguine, upbeat interpretation is what Whites need."(28)

The hostess at the restaurant, where we had been waiting briefly, beckoned us to come in. We followed her to a booth, sat down, and picked up the menus. Before we started scanning them in earnest, I asked Rodrigo, "And did that answer satisfy them?"

"It seemed to, for then. At least, we soon moved on to something else. But it didn't fully satisfy me. On the flight back I realized there's more to it than that. I'd love to run some ideas past you, if you've got the time."

I nodded enthusiastically. "Should we order first?"

1. IN WHICH RODRIGO RECONCILES MAINSTREAM CIVIL RIGHTS LAW AND THE MORE

   PESSIMISTIC RACIAL-REALIST (CRITICAL RACE THEORY) VERSION

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