Civil Rights in the Post 911 World: Critical Race Praxis, Coalition Building, and the War on Terrorism

AuthorAdrien Katherine Wing
PositionBessie Dutton Murray Distinguished Professor of Law at the University of Iowa College of Law

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Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa College of Law. A.B. Princeton, 1978; M.A. UCLA, 1979; J.D. Stanford, 1982. This paper was presented at the Civil Rights symposium of the Louisiana State University Law Review, held on March 13-14, 2003. I would like to especially thank my commentator Kevin R. Johnson for his helpful suggestions on a draft of this article as well as the other participants at the symposium. I would also like to thank my research assistants Jeremy Goldkind, Alexander lp, Monica Nigh, Robert Ratton, and Kevin Stokes. The very able journal staff was led by symposium coordinator Jackie McCreary.

I Introduction

As we await the decisions in the University of Michigan affirmative action cases,1 this symposium raises a timely and important query: is civil rights law dead? This article answers that query by asserting that there is a need for a thorough reconceptualization in the 21st century. Historically, civil rights in the United States has been synonymous with the struggle of African Americans to attain racial equality with white Americans.2 The battles of other ethnic minorities, such as Latinos, Asians and Native Americans, not to mention the struggles of other victims of discrimination such as women, gays, the disabled or the aged, have often received secondary attention.3 Some scholars and activists would assert that, given the unique history of Blacks as slaves Page 718 in this country, the continuation of the so-called black-white binary or emphasis is still justified.4

In my view, we must expand our civil rights efforts beyond all the above mentioned groups to include those that do not easily fit into historic racial categories: specifically Arabs and Muslims, who have faced especially increased discrimination since September 11, 2001.5That day clearly changed the United States, if not the world, in very profound ways.6 Since then, the War on Terrorism has taken precedence in both U.S. foreign and domestic policy. In late 2001, the foreign policy aspect manifested itself as a literal war in Afghanistan that overthrew the globally despised Taliban regime.7 Shortly after the symposium for which this paper was composed took place, the U.S. launched a war against Iraq to overthrow its long term leader Saddam Hussein and destroy any weapons of mass destruction.8 On the domestic front, these wars have had profound effects on the civil liberties of both noncitizens and citizens, particularly Arabs, Muslims, and those who resemble them.9

Part II of this article details how the civil rights of Arabs and Muslims have been restricted both before and after September 11, 2001.10 Using a Critical Race Theory (CRT)11 analysis, we shall see how these groups have been socially constructed as "Black," with the negative legal connotations historically attributed to that designation. For example, racial profiling, which originated as a term synonymous with Blacks and police traffic stops,12 now equally applies to both Arabs and Muslims in many contexts.

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Part III draws upon CRT for answers for how to solidify a new, more inclusive civil rights movement.13 Critical Race Praxis, combining theory and practice, will be detailed as a means to create solutions to the civil rights dilemmas facing all groups, including Arabs and Muslims. Part IV suggests a specific form of praxis, coalition building, as a problematic but appropriate means for the new and old components of the civil rights movement to intersect and perhaps join forces from time to time.14 Part V concludes with specific proposals for coalitions that may help alleviate the bleak situation currently facing Arabs and Muslims.15

II Civil Rights In The Post 9-11 World: The War On Arabs And Muslims

This article addresses civil rights and the war on terrorism from the perspective of CRT, a jurisprudential genre that derives in part from Critical Legal Studies (CLS).16 Beginning in the 1970s, CLS scholarship was initiated by a predominantly white male "collection of neo-Marxist intellectuals, former New Left activists, excounterculturalists, and other varieties of oppositionists,"17 who became professors in elite law schools. Known as "Critters," they endorsed a politically progressive perspective on a wide variety of legal issues, challenging both conservatism and legal liberalism. Inspired by European postmodernist philosophers like Jacques Derrida18 and Michel Foucault,19 the Critters used a deconstruction methodology to attack traditional notions still taught in most law school classes today that assert that the law is neutral, objective, and determinate.20

As path breaking scholars of color such as Derrick Bell, Richard Delgado and others joined the legal academy in the '70s and '80s, CLS analysis intrigued them, especially as it considered class issues Page 720 that disproportionally affect people of color. Unfortunately, CLS did not sufficiently take race and ethnicity into account.21 For example, class analysis would presume that wealthy Americans would have certain privileges, regardless of color. My personal experience, and that of my African American professional peers, is that Blacks, even if well-to-do, do not share in these privileges to the same degree as their white counterparts. I wince in pain as my upper middle class African American sons are still regarded as potential criminals on the street, are racially profiled by the police, and are perceived as unqualified beneficiaries of affirmative action22 on their campuses. Likewise, the Black underclass has not been treated similarly to the white poor and working class.23 It is difficult to think of one example where a white man received the beating that speeding Black motorist Rodney King did from the Los Angeles police.24 If King had been a doctor or other professional, would that have stopped the beating? CRT thus arose in part as a race intervention in the leftist CLS discourse, placing considerations of race and ethnicity at the center of the analysis.25

Simultaneously, the founders of CRT were also frustrated with the cyclic nature of racial progress,26 which was very evident as one looked at the 1950s and 1960s civil rights movement judicial, legislative, and executive branch policy gains, and compared them with the de jure and de facto retrenchment that had occurred by the 1980s Reagan-Bush administrations.27 CRT thus also evolved as a leftist intervention in traditional civil rights discourse,28 attempting to construct progressive legal approaches. "In illuminating the racist nature of the American legal system, CRT adherents are particularly interested in legal manifestations of white supremacy and the perpetuation of the subordination of people of color."29

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While a full discussion of all the various CRT tenets that have evolved in the literature is well beyond the scope of this article,30one aspect that is relevant is the proposition that race is not biologically determined.31 Scientists have demonstrated that there can be more genetic similarity across the so-called races, than within them.32 "Racial categories are fundamentally social in nature and rest on shifting sands of biological heterogeneity. The biological aspects of 'race' are conscripted into projects of cultural, political and social construction."33 In the nineteenth and early twentieth century in the United States, for example, European immigrants such as Jews, Italians, and Irish were originally socially constructed as nonwhite, even Black, with all the connotations of inferiority such a construction implied.34

To illustrate how race can be socially constructed, I will use myself as an example. In the United States, I am considered African American or Black American, with the de facto second class status that designation still implies. My parents and grandparents were all considered Black, even though some of them had very light skin. The most recent white person whom we can determine is an ancestor is my great-great grandfather, Confederate General Pierre Gustave Toutant Beauregard.35 We even have members of the African American group who look white, yet are still considered part of the Black group.36 In South Africa, where I have taught many times, I was considered part of the historically mixed race group known as Coloured, due to my light skin, wavy hair and other characteristics.37 During the apartheid era, this group had a buffer status between the de jure most privileged whites and the least privileged black Africans.38 In Brazil, I learned that my same Page 722 features would classify me as White, with all the de facto privileges that the designation still brings in that society.39

The pan-ethnicity term "Arab" and the religious signifier "Muslim" have been socially constructed as a synonymous "race" in the United States.40 While there are over 1.2 billion Muslims worldwide, only 15% are Arab.41 In the U.S., it is unclear, but there may be between 4-8 million Muslims, of whom 22.4% are U.S. born and 23.8% are African American.42 There may be 3 million Arabs in the U.S., originating from 22 countries,43 and the Arab American Institute has revealed the little known fact that nearly three quarters of Arab Americans are Christians.44 In an important case, St. Francis College v. Al-Khazraji, the Supreme Court acknowledged that Arabs can be discriminated against on account of their race.45

Interestingly, those who merely look like Arabs or Muslims may be racially profiled on that basis as well. The double group can thus be considered larger than the number of actual members. According to one commentator, there may be, in this country, 7 million Arabs, 8 million Muslims, and 1.6 million South Asians, Latinos, and African Americans who could look "Arab," probably...

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