Law in Contemporary Society

The Utility of Merging Academic Discourse and the Functional Approach in enabling in people the willingness to recognize the realities of race and to act against racial inequality

The Functional Approach Appears Better Suited than Academic Discource in addressing the realities of race and addressing racial inequality

As a student, I have always prided myself on my ability to apply frameworks of analyses to “racial projects” at the individual and macro-level. Two months ago, however, I found myself in San Francisco’s drug court witnessing a deep racial divide separating the room: the white judge, sheriff, stenographer and prosecutor on one side, and the deep sea of black and brown seated at the other. It occurs to me now that I had processed the entire scene as an experience with race itself, touching off a fervent desire to do something to change the racial fault lines. Whether the courtroom experience was actually a product of “institutional racial hegemony” or some other theoretical abstraction, however, made no difference to how I felt in the courtroom. My familiar theoretical frameworks for analyzing race seemed ineffectual; my desire to mobilize was driven simply by witnessing a powerful racial moment with my own two eyes.

Few topics of sociological, economic or political importance have been subject to as much intellectual and legal discourse and postulation as race. Its treatment has assumed theoretical labels of “political race”, “racial formation”, “racial essentialism” and so on. However, academic discourse on race and its promise of a more egalitarian future fails in large part to capture the reality of what race means, how it operates in people’s lives, and how best to mobilize efficacious social action.

Take racial profiling, for example. If we see a cop unreasonably abusing and detaining a juvenile black, does it matter whether one labels this an individualized expression of a stereotype (colorblindness) or the reinforcement of hierarchies of privilege (race-consciousness)? Resolving the debate certainly does not help the juvenile, who ends up in prison regardless of how we codify his experience. Even from the standpoint of the enraged observer, the reality that she has experienced race in a way that solidifies her conviction to fight racism is not adequately captured by some abstract theory of racial progressivism.

If “a thing is what it does”, it seems obvious to me that racism cannot be “explained away” by some morally neutral theory about social organization. Effective opposition to racial inequality is defined by the actions taken to confront and ameliorate the injustices. Towards this end, the functional approach appears better suited than toothless academic discourse.

Material Deficiencies in the Academic Discourse on race and the Functional Approach make each Inadequate tools for addressing racial inequality

Proponents of academic discourse on race believe that it represents an essential tool in promoting greater racial equality. Two arguments readily present themselves: First, it exposes and generates public opposition to disingenuous proxies for racial discrimination that are usually cloaked in so-called colorblind policies. Second, it generates quantifiable and verifiable data that form the basis for remedial laws and public policies.

One such proponent is John Payton, the Director Counsel of the NAACP Legal Defense and Education Fund. In his keynote address at the BLSA Paul Robeson Conference this semester he argued that law students and practitioners should stimulate discussion on the need to maintain the preclearance requirements imposed on certain jurisdictions in southern states by the Voting Rights Act of 1965. Such discourse illuminates the barriers erected to minority voters by changes in election law and voting venues of the covered jurisdictions. Similarly, in Brown v. Board of Education 347 U.S. 483 (1954) the argument that maintaining racially segregated schools ensured equal educational experiences was significantly undermined by sociological studies qualifying and quantifying the negative self-perception of black children in their own school environment in contrast to white children. Discourse on the pernicious effects of racial inequality produced evidence that contributed significantly to remedial laws.

However, functionalists can legitimately point out that arguments for the maintenance of the preclearance requirement reinforce the notion that minorities won’t stop facing discrimination in voting until people lobby their legislators to change the invidious laws. Similarly, the limited efficacy of remedial laws is demonstrated by the fact that for several years after the Brown decisions many southern states defied with virtual immunity the Court’s order for immediate desegregation. Moreover, the disparities in resource allocation between secondary schools with predominant minority populations vis--vis those with predominantly white populations persist today with regressive prospects for the social mobility of poor minorities.

Even so, the functional approach also has its limitations. Primarily, those who do not view racial inequality as a problem will not care enough to choose to act against it. Alternately, another person sitting in the gallery of that San Francisco drug court may not have seen the clear racial divide as I did because nothing in their background sensitizes them its reality, so naturally they see no need to act against it. The functional approach is balanced precariously on the assumption that the capacity and willingness to recognize the complexities of race lie within most people’s psyche.

Reinforcing Academic Discourse with the Functional Approach offers a good start to remediating problems of race

One vexing issue remains how to get people to acknowledge and act against racial discrimination? Interacting with minorities may be the most powerful tool for disabusing some people of their racial prejudices. But others can interact with minorities without consciously recognizing how their actions and inactions implicitly acquiesce or affirmatively contribute to racial discrimination. Perhaps exposure to discourse on race may at least sensitize such people to the socioeconomic and political realities undergirding the problem and their role in not perpetuating it.

Ultimately, the debate on whether academic discourse or the functional approach better reflects the experiences of race and remediates inherent inequalities may be immaterial. Academic discourse fails if it does not result in people acting. Similarly, people’s actions may fail to the extent that they merely give token recognition to racial equality while maintaining their prejudices. Although seemingly pithy, a symbiosis of intellectual and legal discourse reinforced with a persistent call for personal accountability in arresting racial inequality on micro and macro social level appears to be a good start. Admittedly, the difficulty and complexity of the slow march towards that synergy is captured by the racial division of that San Francisco courtroom in a country that elected a biracial man for president.

-- YoungKim - 21 Apr 2009

  • This is a very interesting approach to the editing of Young's draft. I don't think the promise of a clear divide between "academic discourse" and the "functional approach" has been achieved here, but it's an obviously interesting and valuable route to explore. Is "critical race theory" (or any "non-critical" kind that may be suggested) being or becoming transcendental nonsense because it is not maintaining connection between its language and social realities? Some illustrative evidence would help. When John Payton spoke about section five, he was doing so in the expectation that a Supreme Court decision in NAMUDNO v. Holder might significantly weaken or destroy it. That wasn't just the "functional approach" in general, it was public relations in the immediate context of ongoing litigation. So that illustration too could have been productively supplemented or replaced.

  • For which reasons I think this edit, although fascinating, isn't complete. It would be well worth the attention necessary to refine the argument further, simplifying and (to borrow from Father Divine) "tangibilizing" it to make it clearer.

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r4 - 08 Jan 2010 - 22:28:10 - IanSullivan
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