The current landscape of race: old targets, new opportunities.

• Author: Delgado, Richard

WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY. By Michael K. Brown, Martin Carnoy, Elliott Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Shultz, and David Wellman. Berkeley, Los Angeles, and London: University of California Press. 2003. Pp. vii, 338. Cloth, $40; paper, $17.95.

ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALF-CENTURY OF BROWN V. BOARD OF EDUCATION. By Charles J. Ogletree, Jr. New York and London: W.W. Norton & Company. 2004. Pp. xi, 365. Cloth, $25.95; paper, $15.95.

THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY. By Alexander Tsesis. New York and London: New York University Press. 2004. Pp. ix, 228. $45.

TABLE OF CONTENTS INTRODUCTION: THE DOG THAT DIDN'T BARK I. THREE RECENT BOOKS ON RACE A. Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education B. Michael K. Brown, Martin Carnoy, Elliott Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Shultz and David Wellman, Whitewashing Race: The Myth of a Color-Blind Society C. Alexander Tsesis, The Thirteenth Amendment and American Freedom II. ANALYSIS AND COMPARISON III. THE DOG THAT DIDN'T BARK A. Incorporating White Privilege into Racial Analysis B. Beyond the Black-White Paradigm of Race IV. LOOKING FOR SIGNS OF THE NEW PARADIGM IN BROWN, OGLETREE, AND TSESIS CONCLUSION: ONCE THE DOG BARKS, THEN WHAT? INTRODUCTION: THE DOG THAT DIDN'T BARK

It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. (1) In civil-rights law, one thinks of such areas as women's sports (2) or the problems of intersectional groups, such as women of color or gay black men. (3) One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs (4) or execution of children (5) or the mentally retarded. (6)

What of challenges that do not come readily to mind because they lie outside the current paradigm--problems that we do not readily think of as civil-rights issues at all, or that are so radically unlike those we do recognize that they require a leap of the imagination to see them as such? (7) Here, we lack a template--a periodic table. We cannot easily make the link between the familiar and the unknown. The new issue does not lie on the same plane as those we know, so that mental extrapolation and interpolation do not readily lead us to it.

Issues of this kind require us to expand our conceptual repertory and learn to think in different ways. They require us to listen for "the dog that doesn't bark" (8)--to flip a structure such as conventional civil-rights law and look at it sideways. They require us to look at that structure as a whole and consider what might be missing.

This is a good time to step back and survey recent writings about race. The fiftieth anniversary of Brown v. Board of Education (9) has brought forth a wealth of scholarship--retrospective, critical, and celebratory. (10) The three books that I take as illustrative are each, in their way, excellent. Reflective, even ruminative, All Deliberate Speed interweaves the story of author Charles Ogletree's (11) life with national events that took place during the same period, such as the Brown decision, the Anita Hill-Clarence Thomas hearings, and the lawsuit for black reparations growing out of the 1921 Tulsa riots. Ogletree's book brings these events to life, while reinforcing how much remains to be done to effectuate Brown's mandate. In Whitewashing Race, Michael K. Brown (12) and his coauthors (13) put forward a scorching critique of an emerging neoconservative approach to race and show how it has produced a new type of tough-minded, "realist" racism exemplified by Stephen and Abigail Thernstrom's America in Black and White: One Nation, Indivisible. (14) Alexander Tsesis's (15) book audaciously seeks to reorient racial jurisprudence so that it avoids the cultural inertia and doctrinal baggage that recent books--including the other two reviewed here--document. He seeks to place such jurisprudence on sounder footing.

Although these otherwise strong books contribute greatly to current knowledge, they--like much recent writing about race--nevertheless devote scant attention to two issues that ought to be on the agenda of every serious treatment of race: white privilege and the place of nonblack groups such as Latinos and Asian Americans in the civil-rights equation. Not only for African Americans, but also for other groups, two forces--oppression and favoritism--maintain white supremacy, so that ending one without attention to the other would do little to improve matters. (16) If the demise of formal, state-sponsored racism has left in place a system of informal favors, exchanges, informational networks, old-boy references, and college-entrance criteria by which whites see to their own, the system of white-over-black power relations will hardly budge. (17) White privilege thus demands the serious attention of every race scholar.

By the same token, a simplistic approach that takes two groups, the white and the black, as constitutive can do little to counter the types of discrimination that nonblack groups, such as Latinos, Asians, and Native Americans, suffer. (18) Such a treatment will only be able to redress discrimination targeting these other groups to the extent that they succeed in analogizing their discrimination to a type that blacks encounter. A Filipino, for example, who suffers accent discrimination on the job, (19) or a Latina unable to perform jury duty because she understands Spanish and cannot be counted on to pay attention to the fumbling court interpreter, (20) may easily find herself without a remedy. Blacks do not suffer discrimination based on a foreign-sounding accent, national origin, immigration status, or inability to speak English proficiently. (21) Hence a Filipino, Asian, or Latino complaining of one of these forms of treatment is apt to find little case or statutory law in his or her favor. The black-white binary paradigm of race thus requires expansion to deal with our increasingly multicultural, multiracial society--and even, sometimes, to do justice to the black cause. (22)

These two issues--white privilege and the black-white binary of race-are the dogs that don't bark. Strikingly absent from much recent writing about race, they tell us a great deal about mindset, (23) presupposition, and, in some cases, intellectual laziness, (24) racial favoritism, (25) and denial. Their absence mars the imagination, reach, and analytical power of many otherwise very good books.

This Review proceeds in four parts. Part I describes the three books Part II highlights what is valuable in each and points out a few minor respects in which they fall short. Parts III and IV identify a deeper shortcoming: the failure to come to terms with white privilege and the black-white binary paradigm of race, issues that lie outside the conventional paradigm of race scholarship but that are becoming more salient with each passing day.

1. THREE RECENT BOOKS ON RACE

   1. Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education

      Part memoir, part legal history, and part legal critique, All Deliberate Speed is well-paced and a very good read. Beginning with the author's early school years as a "Brown baby" (Ogletree, pp. 15-42), the book takes the reader through the legal strategy that led up to Brown v. Board of Education (Ogletree, pp. 3-13, 111-27), juxtaposes the late Supreme Court Justice Thurgood Marshall with current Supreme Court Justice Clarence Thomas (Ogletree, pp. 135-37, 170-79, 183-236), and gives a behind-the-scenes look at the author's representation of Anita Hill during the Clarence Thomas confirmation hearings (Ogletree, pp. 181, 202-17). It discusses the campaigns for affirmative action (Ogletree, pp. 81-82, 147-66, 242-56) and black reparations (Ogletree, pp. 274-93), the defense of Angela Davis (Ogletree, p. 45), and many other national events in which the author played a leading part. The reader learns of Ogletree's early years living with struggling black parents on the wrong side of the tracks in Merced, California (Ogletree, pp. 15-40), his undergraduate years at Stanford University (Ogletree, pp. 41-56), and his life-changing three years at Harvard Law School (Ogletree, pp. 57-78). It follows him through his term with the nationally prominent District of Columbia Public Defender Service (Ogletree, pp. 82-88) and his entry into teaching law. Photographs of Ogletree in his third-grade class, as his high school's student body president, as an undergraduate activist at Stanford, and as a young lawyer arguing key cases enliven an already engaging book.

      The book's principal leitmotif is integration--the Brown ideal--and the author's ambivalence about whether the ideal is still worth striving for in the face of society's increasing indifference (Ogletree, pp. xiv-xvii, 259-73). Integration provided Ogletree with a first-rate education, yet it failed many other black students of his generation. In his graduating class of several hundred, only a handful of the dozens of black students wanted to attend a four-year college (Ogletree, p. 40). Some cities, such as Boston, resisted integration bitterly, casting abuse on defenseless black schoolchildren bused in from the other side of town (Ogletree, pp. 57-71). Others placed black and brown children in lower academic tracks or in classrooms led by teachers who believed them incapable of higher intellectual achievement (Ogletree, pp. 33, 40). Because society seems content to pursue integration at "all deliberate speed," Ogletree wonders whether the black community would not be...