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Patrica J. Williams, The Alchemy of Race & Rights

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I recently attended three different conferences that brought together three very different groups, and three very different perspectives on the possibilities for law and social change.

In New York City, the Applied Research Center's (“ARC”) Facing Race conference brought activists together from all over the country to discuss and strategize over the future of racial justice. In attendance were grassroots activists, journalists, teachers, public officials, and lawyers.

Shortly afterwards I attended a gathering put together by the National Campaign to Restore Civil Rights (“NCRCR”), and co-convened by EJS that brought together many of the top public interest litigators to discuss the state of the law as it relates to the ability to bring claims in federal courts to vindicate federal and constitutional rights.

Finally, at the UCLA School of Law, I attended the inaugural Critical Race Studies (“CRS”) symposium, which tried to track the state and future of critical legal thought and its relationship to social change.

Three conferences, three approaches to social justice: activism, legal practice, and theory.

Each had a different relationship to the law and what it means for social justice, in many ways determined by and highlighting the roll of the courts as a mechanism for racial equality and social justice. In the past few decades there has been a predominant shift away from using the courts to achieve social justice, and there has been a growing consensus that non-litigation strategies are a more effective avenue.[ii] The reasons are many, from avoiding the seemingly inherent client-disempowering function of litigation - that relies heavily on the specialized knowledge of attorneys - to a view that sees legal change as a dream that will be permanently deferred.

At the ARC conference, it seemed clear that the courts were clearly not the focus of social justice organizing. Here, the roll of the courts was conspicuously absent from the discussion, a distinct break from the past civil rights movements and the history of the Supreme Court’s roll in overturning de jure segregation. The discussions focused on grassroots movements, media strategies, or trying to force political actors to make certain policy decisions, but too often, specifics about what legal structures and rules that would need to be in place seemed to be ignored.

This is perhaps for good reason, as the courts are currently inhospitable to claims for racial justice. At the NCRCR meeting, the focus was on the current ability to enforce federal statutory and constitutional rights through Section 1983.[iii] Section 1983 is the primary mechanism that allows plaintiffs to bring actions in federal courts to vindicate these rights. This statute has been consistently withered away in recent years. One of the harshest blows came in a case called Gonzaga v. Doe,[vi] which set the current precedent for determining what rights could and could not be enforced through a private right of action. Absent a private right of action, a great deal of social justice and civil rights protections risk being found unenforceable. Much of the discussion centered on how to manage detrimental precedent and how to ensure that worse case law didn’t get made, given the current make-up of the federal bench.

The remaining discussion, the silver lining if you will, focused on a possible solution – preemption – that would still allow plaintiffs to use the courts to attain some remedies for rights violations. However, this solution discards the possibility of attorney’s fee’s, weakening the “private attorney general” model that forms the bulwark of the enforcement mechanism.[vii] In all, the litigators were in agreement that the civil rights framework had been severely damaged, and that at best, the courts are not currently a promising place to seek enforcement of civil rights.

Coming from these two conferences, one was left wondering why civil rights advocates keep insisting on utilizing the courts? Why keep privileging this site? Interestingly, a stirring rejoinder was offered in a rather unlikely place, at the Critical Race Studies symposium. Critical legal thought has always held a skeptical view of the law’s ability to ensure protection of insular groups and achieve social justice, and a large portion of Critical Race Theory takes a similar approach.

However, the keynote address at that conference was given by Professor Muneer Ahmad, who talked about the role of law and its importance in his representation of Guantanamo detainees. In his talk, he mapped a relation between Guantanamo and the rest of the world in a way that implicated the concepts of race, rights, citizenship, and the law. He pointed out that Critical Race Theory as a form of oppositional legal praxis calls out laws’ silent stories and offers a radical oppositional counter-narrative. He pointed out that security, now as ever, has been attained through the quarantine of dark bodies, and only now it has opened up a space between race and religion, where the religious icons become part of the racialization process. These spaces that are opening up are allowing for new forms of discrimination and exploitation to occur through “colorblind” code words like “immigration” or “culture.”

But Professor Ahmad, echoing Patricia Williams, insisted that there is a reason—a necessity—for rights-based strategies, despite a certain emptiness to rights discourse. It is in creating the discourse that we infuse the possibility of a better future: one that allows us to dream of a world without the bondage of chains or walls. Through this praxis, counter-hegemonic conceptions of law and society are introduced and brought to life, waiting to find solid ground in the courts or public consciousness to take seed and grow.

We must remember that the inhospitality of courts to our claims for redress is the result of a counter-revolution in the courts that is a scant few decades old. Recently, Judge Steven Reinhart of the 9th Circuit gave a speech at Georgetown law school, calling on young progressive students to lay the groundwork for what he felt would be the third revolution in American jurisprudence, where the courts resumed the mantle of protectors of insular minorities and fundamental rights. He called upon the students to keep fighting in the classrooms, in the congress, and (judiciously, for the time being) in the courts.

The courts alone are not the answer, as the ARC conference made clear, nor are they currently our friends, as the NCRCR meeting made apparent. However, the lesson that we have to take from this is that we cannot abandon the terrain of the law and the courts, and we must continue the fight to reclaim them as a place to create a vision of justice and equality.

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[i] Patricia J. Williams THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR p. 163.
[ii] cf. Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics 120 Harv. L. Rev. 937 (2007).

[iii] 42 USC § 1983.

[vi] 536 U.S. 273 (2002).

[vii] EJS President Eva Patterson recently spoke at the closing plenary at the Association of American Law Schools annual meeting held this January.