The Tower of Babel: bridging the divide between critical race theory and 'mainstream' civil rights scholarship.

• Author: Brown, Eleanor Marie

Poor Black people tell stories. I hear their stories daily. I have heard them in the words of a cousin who came dangerously close to losing a daughter to gang warfare. I have heard them in the words of an inmate as he explained just how a Black man from the projects had ended up on death row. I have heard them in the words of a client at the Yale clinic: the poor Black woman who explained how she made ends meet with three children and an AFDC(1) check of less than $500 a month.

Disenfranchised Black people also write poetry. I have heard poems in the words of the aspiring rap artists who frequent my hairdresser's parlor. I have heard poetry in the Negro spirituals that my grandmother sings as she braids my hair.

More privileged Black people tell stories and write poetry too. I have heard stories in the words of an uncle who was unable to buy a home in the suburbs, despite his college education and financial resources.

I too used to tell stories. Now they tell me that I write theory.

Introduction

Critical race theory challenges the exclusion of voices "from the bottom"(2) in mainstream legal scholarship. Critical race theorists insist "on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society."(3) As Mari Matsuda describes this project: "From the ... namelessness of the slave, from the broken treaties of the indigenous Americans, the desire to know history from the bottom has forced ... scholars to sources often ignored: journals, poems, oral histories, and stories from their own experiences of life...."(4)

Critical race theorists' use of narrative epitomizes this attempt to include voices "from the bottom."(5) This reliance on narrative is explicitly pragmatic. First, critical race theorists use narrative in a self-conscious effort to include the voices of people of color who have traditionally been excluded from conventionally "appropriate" legal scholarship. Second, the use of narrative challenges the traditional meritocratic paradigm of the academy by attempting to subvert what are viewed as pretenses of "objectivity," "neutrality," "meritocracy," and "color-blindness." To the extent that one writes in the conventional mode, one glorifies these traditional meritocratic standards that were conceptualized in a "raced" world.(6)

The critical race theory "manifesto" might be characterized as follows: We, as people of color, were not there when conventional legal standards were being formulated. Little wonder that these traditional meritocratic standards have worked to exclude us historically, and still work to exclude us. Disenfranchised people of color theorize, but they theorize in different ways. They tell stories. Hear us, and hear us in our own voices. It is only then that you will truly hear us.

The response of the larger academy to this "upstart" movement has been one of decided ambivalence. It bears little resemblance to the reaction of the mainstream academy to the "outsider" movements of previous generations. A case in point is the emergence of the critical legal studies movement (CLS) two decades ago.(7) When CLS first issued its most damning critiques, the academy responded vigorously.(8) Liberal civil rights scholars, who saw themselves as actively involved in challenging legal inequality, began intellectual soul-searching as they struggled to defend their project. Although the gulf between CLS and the mainstream academy has arguably never been bridged, there can be little doubt that mainstream scholars have engaged in a sustained grappling with CLS's critiques. The academy has been pushed to look within.(9)

When it comes to legal scholarship addressing race, by contrast, it is striking that despite the existence of critical race theory for nearly a decade, the response to it has generally been a conversation among those who identify themselves as critical race theorists.(10) There simply has not been the sustained self-examination by traditional civil rights scholars that should result from the powerful critiques that critical race theory has posed to fundamental tenets of the academy. The inadequacy of the mainstream reaction to critical race theory is not reflected in the quantity of the responses. There have been persistent critics of critical race theory and of the narrative project in particular.(11) Rather it is the quality of the responses that has been disappointing. Those who have taken the time to respond have largely attacked form rather than substance. As scholars have tinkered with these more peripheral questions, sadly the more fundamental questions have hardly been posed, much less answered.

Thus, when "insiders" offer critiques of this "outsider"(12) scholarship, there is little fruitful dialogue. The "outsiders" and the "insiders" seem to talk past each other rather than to each other, passing by each other but never quite meeting face-to-face.(13) The resulting breakdown in communication is an academic "Tower of Babel," a replication on a small scale of the biblical story.(14) Each group of scholars does not quite understand the other's language.

Critical race theorists simply have not been communicating with their peers. The irony of this conversation (or lack thereof) is indeed striking. Critical race scholarship has self-consciously identified itself as "outsider" jurisprudence, with the stated goal of transforming the racial exclusivity of the law, society, and the academy. Yet one cannot transform without communication. To the extent that the stated goal is transformative, critical race theory has a responsibility to communicate with the larger academy, particularly with "mainstream" civil rights liberals, who also view themselves as involved in a broader project of eliminating discrimination.

I do not argue that critical race theorists are not heard because they use narrative. It is true that narrative is an "outsider" mode of discourse in legal scholarship that has only recently begun to receive recognition. It is also true that Derrick Bell broke new ground when he wrote his Harvard Law Review Foreword in the narrative form.(15) Scholars such as Robert Cover and James Boyd White, however, have long championed narrative as a mode of legal writing.(16) Similarly, feminist scholars have been vigorous proponents of including women's stories in legal analysis.(17) Critical race theory stands on ground that had been broken long before its official arrival.

I would argue that the central issue is not the use of storytelling, but the way White characters are portrayed in these stories. Critical race narratives simply have not incorporated the extensive social science research indicating an increased sophistication of White attitudes toward race. Survey research over the last two decades has consistently shown that White Americans generally do not perceive themselves as actively contributing to racial privilege. They are not the old-fashioned racists of the past - the George Wallaces and Bull Connors - "dominative" racists,(18) as the social science literature terms them.(19) Despite this change, the Whites in critical race stories epitomize "dominative" racists. Partly for this reason, the legal academy in general and mainstream civil rights scholars in particular do not recognize themselves in critical race narratives and thus remain unconvinced by them.(20)

This Note is an appeal to the critical race theory movement to draw on the wealth of empirical research about racial attitudes.(21) Critical race theory presumes that "racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines."(22) This is a difficult conceptual leap, but it is not inherently more difficult than that required by the "outsider" movements of other eras, be it the legal realist or the CLS movements.(23) Empiricism might help "insiders" transcend the divide.

In Part I, I present a brief overview of the fundamental premises of critical race theory. I also address the common critiques of critical race theory. Part II discusses racial opinion surveys over the past four decades and a number of social science models. It shows that Whites, particularly those who identify themselves as "liberal," perceive themselves to be strongly egalitarian even though there is a wide disparity between their theoretical support of de jure equality and their actual treatment of Blacks. I offer a theoretical framework that I term "schizophrenia"(24) to conceptualize modem White attitudes toward Blacks. In Part III, I employ the "schizophrenia" framework to offer a critique of critical race narratives, focusing particularly on the work of Derrick Bell, Richard Delgado, and Patricia Williams, and using my own narrative. In Part IV, I challenge critical race theory to move beyond a perfunctory recognition of the nuanced nature of White attitudes to a full incorporation of this reality into its narrative critique of legal institutions.

As an aspiring critical race theorist, I agree that "masks and other disguises"(25) must be exposed for what they are - pretenses for perpetuating subordination. We must be careful, however, that even as we struggle to have our stories included, we do not frustrate our own goals through the stories we tell. Perhaps then we will begin to speak to our peers, and only then will they truly begin to reply.

1. Critical Race Theory's Challenge: An Overview

   Critical race theorists entered the academy with a splash. Their scholarship is loud, strident, and uncompromising, not unlike the tenor that one expects of "outsider" protests. They have criticized what is termed the "dominant discourse - the collection of ideas, concepts, presuppositions, and arguments that make up liberal legalism."(26) Critical race theorists charge mainstream civil rights scholars with having a "managerial view of civil rights,"(27) the objective of which is the "management of tension."(28) In contrast, the...