What's wrong with our talk about race? On history, particularity, and affirmative action.

• Author: White, James Boyd

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. (1) Organized by the remarkable editor-in-chief, Kevin Kennedy--who tragically died not long after his graduation--the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and depth. In this Essay I shall build on the idea of that Symposium, but do so in a rather different way from any of those who wrote for it.

I.

People sometimes talk as though narrative is invariably a liberating or "subversive" mode of thought, when of course this is not so: stories can be as authoritarian, reactionary, closed-minded, and self-satisfied as any other form of discourse. (2) But I think it is also true that the narrative imagination has its own ways of working that can in some ways be inconsistent with more theoretical or abstract forms of speech. (3)

Sometimes you find as you tell a story that it takes on a life of its own, leading you to places you had not imagined and presenting problems of which you had been not consciously aware. This often happens, to take an extremely minor example, in the drafting of law school examinations, and I think it happens in larger and more important ways as well. Think, for example, of Huckleberry Finn. My sense is that in shifting from the traditional third-person narrator, as used in Torn Sawyer, to writing in the voice of an utterly marginal boy called Huckleberry, Twain was mainly thinking of the comic and satiric possibilities of the shift. Huck is a social idiot who perceives everything in a kind of mixed literal and superstitious way: his ignorance of what we all know makes him look foolish, but his fresh perceptions of the sillinesses of our world often make us look foolish too. As I imagine it, under Twain's original plan, the use of the first-person narrator would allow the reader and author alike to feel comfortably superior both to Huck and to the Mississippi River town of Petersburg.

But as the story proceeds it gets out of control: Huck becomes a center of moral life; his friendship with Jim is real--by far the best thing in his life; and Jim himself comes to be seen as a person of extraordinary moral and emotional quality, able to help Huck grow and change. I will not now rehearse the familiar story, but want only to point out that after the famous moment in Chapter 16 at which Huck refuses to turn Jim in to the slave-hunters, the novel comes to a halt. Huck has come to recognize that Jim is his friend, in a real sense the only friend he has ever had, and Twain has no way to imagine the next step in their story. In fact, he stopped writing the book at this point, and when he came back to it three years later he was able to proceed only by separating Huck and Jim and by presenting Huck as though he did not know what he learned in Chapter 16. It turns out that there is no way Twain can imagine the relation between this boy and this man in the social world in which they are placed, the only social world available. I think we could not imagine a life for them in that world either, and that this is a fact full of the deepest social significance. (4)

In one sense, I suppose, this was a real surprise to Twain, a frustration of his comic and satiric intentions. In another sense it was of course no surprise at all, for the story came from within Twain as an expression of a deep and troubling truth at the center of his own experience.

II.

I mean all of this as prelude to an effort of my own to raise a question with which my own imagination, and I think that of the law, cannot adequately deal, namely, the meaning of what we in our world call "race," especially in the context of "affirmative action." Race is of course the topic on which Huckleberry Finn ran aground, and I think we do too--or at least I do. I believe a large part of the problem is the way we tell the story of race in our culture, so in a small way I shall carry forward the theme of the Symposium to which I referred at the outset, where several of the writers--Patricia Williams, David Luban, Milner Ball, Mari Matsuda, Derrick Bell, Richard Delgado, and Clark Cunningham--spoke specifically to narratives about race in America. At the same time I shall engage in more analytic modes of thought as well, though these turn out to have the property that stories often have, namely, that they bring me in the end to a point I had not imagined at the beginning.

My starting point is my sense that there is something awry in the way we in the law talk both about race in general and about affirmative action in particular, something simply missing, or misrepresented. The legal arguments and judicial opinions I read have in general a smooth and plausible and honorable feel, but I have a nagging sense of something deeply wrong, as deeply wrong perhaps as what Twain discovered in his own way of imagining the world. I cannot prove that I am right, or even say with any clarity why I feel as I do, or what it is that is missing or wrong. This Essay, then, is thus really a tentative exploration of an intuition, and I suppose it will be of interest, if any, only to those who in some way share both that intuition and the sense that it cannot yet be quite articulated.

A word about the genre of this Essay. It will contain some factual assertions, some analytic points, some normative judgments, but it is meant to be something different from the sum of these elements and not reducible to them. You might say it is about the way I--and we--imagine certain things: our history, especially our racial history; the role of race today, especially the racial line between those we call white and black; the point of affirmative action, especially in the university. Since race is not a biological but a cultural fact, I shall be exploring an aspect of our culture, and its history, from the point of view of a participant in it. This kind of work has an ineradicably personal element, for our imaginings are always individual as well as shared. I am trying to say how things really look to me, and this is a function of my own experience and capacity and perception. It is necessarily the case that they will look somewhat different to others, and this is all to the good. (5) As a matter of form, the first half of the Essay will develop the intuition I spoke of above, asking the reader whether or not he or she shares my perceptions; the second half will identify certain consequences that might flow from this intuition if it were shared.

My fundamental point in casting the Essay as I do is to claim that even to ask the question of how we think of race in the law is to draw attention to an act specifically of the imagination; and that thinking about race has some of the features of narrative, including the presentation of characters against a background, engaged in a sequence of events for which a meaning is claimed--and often a meaning that works as something of a surprise.

I am speaking here of the problem of white talk about race, since for these purposes legal talk is white talk. (6) For decades, even centuries, American blacks and Asians and Hispanics and others have tried to tell the story of race as they experience it, often with great eloquence and with considerable effect on particular readers, but with very little effect on the law, or on the way most lawyers and judges think. In a modest way I am trying to say something brief, from my own perspective as a white person, about what I see when I look at the world of race and at the way we in the law talk about it. (7)

III.

As David Luban suggests in his contribution to the Symposium I mentioned (8)--an essay comparing Walker v. Birmingham (9) with Martin Luther King's Letter from Birmingham Jail (10)--narrative works at the public or political level as well as the local and particular. Indeed, a part of every lawyer's task is to tell the story of the law--including, when appropriate, the history of the nation and its culture--as well as the particular story of his or her client, and to do so in a way that both makes sense of the relevant material in each dimension and also produces an essential coherence between the two stories themselves. This means that some of the problems and opportunities of narrative are present whenever the lawyer speaks, including about the law and its history.

Here is one highly reduced and familiar version of our national story about the racial line between white and black: once we had racial slavery; then we had the Civil War; then we had the great Civil War Amendments, prohibiting slavery, protecting the right to vote against racial discrimination, and prohibiting all the states of the Union from denying any person "equal protection of the laws"; then we had Reconstruction, and its abandonment in 1877; then we had Plessy and Jim Crow; then we had Brown; then we had the Civil Rights Act of 1964, prohibiting discrimination on the grounds of race, not only against blacks but anyone, and finally the Voting Rights Act of 1965. It all makes up a story of gradual amelioration. The large constitutional question still before us, especially with respect to affirmative action, is what the language of "equal protection" is to mean.

The well-known judicial discourse that the Supreme Court has fashioned to give meaning to this language maintains that the central evil against which it is directed is what we call "racial discrimination," and that any state action that distributes benefits or burdens, or otherwise regulates, on the basis of race will be subject to what in the jargon of the day is called "strict scrutiny." This in turn means that a classification based on...