The Struggle for Civil Rights: The Need for, and Impediments to, Political Coalitions Among and Within Minority Groups

AuthorKevin R. Johnson
PositionAssociate Dean for Academic Affairs, University of California

Page 759

Associate Dean for Academic Affairs, University of California at Davis, Professor of Law and Chicana/o Studies; Director, Chicana/o Studies Program (2000-01); A.B., University of California, Berkeley; J.D., Harvard University. Thanks to the Louisiana Law Review for organizing this symposium and inviting me to participate. Jackie McCreary, the symposium editor, and Sheila LaCost deserve special thanks for all their diligence and commitment in putting the wonderfully successful event together. The Louisiana State law faculty, especially John V. White, Gregory Vincent, John Devlin, and Jim Bowers, provided invaluable support and leadership to the student organizers of the conference. Thanks to Adrien Wing for her friendship and inspiration. Last but not least, thanks to Dean Rex Perschbacher for his support of my scholarship and other professional endeavors.

The ominous title of this conference-"Is Civil Rights Law Dead?"-is in no small part a sign of the times.1 The last few years have seen dire setbacks in civil rights law,2 including but not limited to attacks on affirmative action,3 passage of restrictionist immigration legislation4 and welfare reform,5 imposition of limits on civil rights litigation,6 and the creation of legal roadblocks to remedy the Page 760 influence of race on the criminal justice system.7 Since September 2001, the "war on terror" also has had significant negative civil rights impacts.8

The security measures taken by the federal government in response to September 11, although primarily targeting Arabs and Muslims, will likely have civil rights impacts on many minority communities for years to come.9 One of the most visible products of September 11, the USA PATRIOT Act, which, among other things, expanded the power of government to conduct electronic and other surveillance, clearly will have long term civil rights impacts on citizens as well as noncitizens.10 It is difficult to divine what impacts the new Department of Homeland Security will have on civil rights in the United States,11 although immigration matters within the new department might well be handled with a security tilt.

In my mind, the relevant question, however, is not whether civil rights law is dead, but instead whether the political struggle for civil Page 761 rights in the United States is alive and well. Like the national economy, law has a cyclical quality to it, depending on, among many other things, the political composition of the Supreme Court. Political struggle for social justice is particularly necessary when the courts turn a deaf ear to civil rights grievances. Ultimately, the struggle for hearts and minds will determine the fate of civil rights in the United States.

For that reason, my focus on the movement for civil rights, rather than civil rights law, is intentional. It is important, especially for lawyers and law professors immersed in the letter of the law, to recall that civil rights law cannot be relied on exclusively-or even primarily-in the struggle to ensure respect for the rights of all Americans. As the civil rights movement of the 1960s taught, political, as well as legal means, are necessary to move us toward a more racially just nation.12 As no less an icon than Brown v. Board of Education,13 which outlawed de jure segregation but left intractable de facto segregation in its wake, exemplifies, law and litigation alone are unlikely to bring about the desired social change. Indeed, as critical theorists have observed, resort to law may in certain circumstances reinforce racial hierarchy.14 Only sustained political struggle will allow for lasting change of the racial status quo.

Even with civil rights litigation gains in the 1960s and beyond, the status of minorities in the United States has not changed as dramatically as one might expect or hope. Segregation remains at high levels in neighborhoods and schools across the nation, with "hyper-segregation" the norm for African American and Latina/o students.15 Employment discrimination and wage disparities between Page 762 minority groups and whites remain an enduring social problem that legal rules and regulations have not fully remedied.16 Employment discrimination has evolved with the racial demographics of workers in the global economy.17

As to the question whether the political struggle for civil rights in the United States is "dead," I offer an emphatic "no." Consider events just within a few months of this March 2003 symposium. Civil rights advocates and others participated in a growing anti-war movement as the United States engaged in war to topple the Iraqi government.18 Nascent political coalitions among Asian American, Latina/o, and other groups protested the treatment of Arab and Muslim noncitizens19 subject to special registration requirements imposed by the federal government as part of the "war on terror."20 Page 763 The filibuster of the judicial nomination of Miguel Estrada, a Latino nominee prominent in conservative circles but who refused to fully share his legal views with the U.S. Senate, prevented his confirmation.21 Political pressure forced Trent Lott, who waxed fondly before television cameras about how the nation would have avoided its racial "problems" if it had only elected as President a candidate running on a segregationist third party ticket, to relinquish his leadership role in the U.S. Senate.22 Last but not least, a wide array of advocacy groups in early 2003 filed amicus curiae briefs supporting affirmative action in the University of Michigan cases23and rallied on the steps of the Supreme Court during oral argument in the cases to show support for affirmative action. In sum, many signs point to the vitality of the political struggle for civil rights.24

Given that the courts in these times are not likely allies in the quest for racial justice, reinvigorated forms of political action should be investigated. Professor Adrien Katherine Wing's paper "Civil Rights in the Post 9-11 World: Critical Race Praxis, Coalition Building, and the War on Terrorism"25 moves us forward in thinking about the struggle for civil rights in this most challenging era. Known for her influential Critical Race Theory and Critical Race Feminist scholarship,26 Professor Wing brings much to analyzing the Page 764 U.S. government's responses to the tragedy of September 11 and the political opportunities created as a result.

Although the political struggle for civil rights in my view is far from dead, I very much agree with Professor Wing about the need for "a thorough reconceptualization [of civil rights] in the 21st century."27 Changes over recent decades require precisely such a reconceptualization and complete redefinition of the goals of the struggle for civil rights, as well as the desired means to achieve them. The growth of the Latina/o population across the country, including the Midwest and South,28 has shifted the balance of civil rights concerns, adding to longstanding ones. Asian migration, which has increased significantly since 1965, has similarly affected the civil rights agenda.29 Changing racial demographics have expanded the scope of civil rights to include matters not necessarily thought of as traditional civil rights issues, such as immigration, language regulation, and even access to driver's licenses.30

In addition, old issues have been recognized as having "civil rights" implications because of their impacts on minority communities. For example, the field of environmental justice, which grew from environmental law, is of relatively recent origin as activists and academics have come to appreciate the impacts of environmental hazards on communities of color.31 Immigration law and its Page 765 enforcement has increasingly been viewed as implicating civil rights concerns.32 Similarly, voting rights scholarship has focused on race and its impacts on electoral politics,33 with even the racially disparate impacts of campaign finance reform recognized to a certain extent as a civil rights issue.34

As this brief review suggests, "civil rights" are not static and fixed but dynamic and ever-changing. In this vein, the aggressive efforts of the federal government in the "war on terror" have created an entire new set of civil rights challenges,35 with the Arab and Muslim communities being most directly and immediately affected. However, immigrants and citizens from a variety of backgrounds also have suffered - and will continue to suffer for the indefinite future - from the various security measures taken in the name of national security.36

In analyzing the political struggle for civil rights in the United States, Professor Wing builds on two fundamental tenets of Critical Race Theory: (1) race is a social construction, a product of our collective minds rather than a biological truth;37 and (2) tying critical theory to practice, which often is referred to in Critical Race Theory Page 766 parlance as "critical race praxis."38 Both Critical Race Theory teachings shed much light on the civil rights controversies of the times in which we live, thus demonstrating Critical Race Theory's theoretical and practical utility.

As has occurred in different forms with other minority groups, society has racialized and demonized Arabs and Muslims as, among other things, religious fanatics bent on terrorism.39 This racialization, evident in a diverse array of sources ranging from popular culture to special legal rules and regulations, including "secret evidence" hearings in which the government denied Arab and Muslim noncitizens the evidence...

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