Armstrong, M; Wildman, S M --- "Teaching race /teaching whiteness: transforming colour blindness to colour insight" [2008] LegEdDig 34; (2008) 16(3) Legal Education Digest 15

• Teaching race /teaching whiteness: transforming colour blindness to colour insight

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Teaching race /teaching whiteness: transforming colour blindness to colour insight

M Armstrong & S M Wildman

86 N C L Rev, 2008, pp 635–672

This article posits that legal educators must develop an understanding of the role of whiteness in the construction of equality and teach future lawyers to do so as well.

This Article first examines the role of whiteness as the measure of equality for all people, even as that white norm remains unacknowledged. It then explores why whiteness often remains invisible during discussions of race. Two central reasons foster that invisibility: (1) the conflation of white privilege with white supremacy and (2) the societal insistence upon colourblindness. This Article suggests that legal educators, in order to train lawyers in the service of democracy, must not only teach about race and racial justice, but also discuss whiteness and white privilege as part of the racial dialogue. Legal education needs to counter colourblindness with colour insight.

In many legal contexts, race refers to people of colour in contrast to a non-racialised and not- visible white norm.

The task of confronting the operation of whiteness in the law of equality requires making visible and explicit the standards by which law measures legal equivalence. Articulating the operation of whiteness recognises that every person in the classroom is relevant to understanding the role of race in the legal system. Discussing whiteness makes clear that issues of race and racial justice do not solely concern people of colour and the law. Rather, everyone has a stake in understanding whiteness. Discussion of whiteness can lead to awareness of other privileged statuses as well. Intersecting with race, identity categories (like gender, class and economic background, sexual orientation, physical ability, and educational achievement) permeate the operation of privilege and law in the United States.

As non-white people have achieved greater levels of access and opportunity, the appearance of white dominance has become less blatant. But success in the United States often requires the adoption of a kind of normative or performed whiteness.

Most discussions of race not only fail to recognise whiteness, but also reinscribe the existing racial hierarchy that privileges Whites. Reva Siegel has described this process as ‘preservation- throughtransformation.’

The current rhetoric of colourblindness is an example of ‘preservation-through transformation’ that hampers progress towards racial equality. The conflation of white privilege with white supremacy similarly preserves the racialised status quo.

The failure to address whiteness in contemporary legal pedagogy is not surprising given two related sets of beliefs: (1) the tendency to conflate discussions of white privilege with white supremacy and

(2) the norm of colourblindness in the dominant culture. To be able to move beyond the impasse in which racial equality remains mired, it is essential to understand two points. First, white privilege does not operate with the same dynamic as the now discredited notion of white supremacy; and second, colourblindness perpetuates white privilege.

Although rooted in white supremacy, white privilege is more powerful and pervasive than the beliefs or perceptions of supremacy because white privilege actively continues to dictate the terms of day-to-day life in the United States. White privilege establishes whiteness as society’s baseline or norm, ultimately determining who has presumptive access to citizenship, material goods, political power, and social standing. While mainstream thought in the United States would now consider white supremacy to be morally repugnant and explicitly rejected, white privilege remains largely unacknowledged. The existence of white privilege allows white people of good will — many with antiracist views — to benefit from the privileged white norms.

Legal educators encounter the juncture of white supremacy and white privilege in two commonly taught constitutional law cases that explicitly proclaim whiteness as the societal norm and also starkly condone white supremacy. Dred Scott v. Sanford and Plessy v. Ferguson are problematic because they uphold and valourise white supremacy. Both cases are infamous and notably overruled.

Discussions about race today occur in an era when the societal notion of colourblindness is a dominant value. The idealised notion of colourblindness tells us that noticing race is wrong because people are equal. The hegemony of colourblindness suggests that by noticing race, one is undermining equality itself. Any conversation about race, or about whiteness in particular, must work against that dominant social norm.

The focus on colourblindness values not-seeing-colour and stops the possibility of dialogue about race before it can begin. In stopping the discussion, the mantra of colourblindness also cuts off any dialogue about power or racial privilege. With no ability even to talk about race or racial justice, the status quo remains. Thus, the dominant value of colourblindness maintains the status quo of white privilege: ‘Colourblindness is the new racism.’

Given the status quo of white privilege, recognising the context in which conversations about race can occur is critical. One aspect of that context is the society and social history in which the conversation takes place. Legal educators must also note that they work in the institutional context of a particular school and within a specific classroom setting (either a ‘race’ or a ‘non-race’ course, a large section course or a seminar). These multiple contexts complicate conversations about race and whiteness.

It is hard to talk and teach about race in the law school classroom, but it is even harder to address whiteness. Teaching about race needs to be linked expressly to exploring whiteness and making the systemic privileging of whiteness visible for future lawyers.

In this racialised world, race enters the law school classroom even when faculty do not name or discuss it. Legal education culture, despite its reputation for liberalism, tends to ‘whitewash’ law, ignoring the roles of whiteness and privilege in the construction of legal rules and institutions and the application of law. Some teachers examine race in criminal law classes or aspects of other first year subjects, but many do not because they fear addressing the issue or do not believe in its relevance. The issue of race appears in ‘special interest classes’ like race and the law or law and social justice, reinforcing the idea that the subject should be compartmentalised and only a concern for some race specialists. Even in these classes, teaching about whiteness remains an often overlooked aspect of teaching about race.

Even when professors do not mention race as part of a course, race in general and whiteness in particular are present in the law school classroom and embedded in the law the professor teaches. Race and the whiteness within race infuse discussions from which race is verbally absent, often resulting in alienation of students who become frustrated by the classroom silence on this important topic. Race and whiteness affect students and faculty from all racialised groups, but they often affect students and faculty of colour differently from white students and faculty.

When a discussion about race arises spontaneously in a classroom setting, white students and professors may experience discomfort about being misinterpreted or fear making a comment that might be perceived by students as racially insensitive. Impromptu discussions of race raise different issues for faculty of colour. When a white professor chooses to allow spontaneous discussion of race to continue, students and colleagues do not seem to view the white professor’s decision as self-interested, although Whites may be labeled advocates of ‘political correctness.’ Faculty of colour, however, may be seen as mounting a soapbox. What goes unacknowledged is that even without raising the issue of race, faculty of colour bring race into the classroom by their mere presence because the ‘norm’ for faculty remains white in most law schools.

In proposing to discuss race in the law school classroom, this Article makes the following assumptions. A racial hierarchy does exist in the contemporary United States that privileges whiteness. Whiteness defines the institutional norm in most law schools. Race enters the room when each of us steps into the classroom, but it enters in a different way for the white teacher and for the teacher of colour. When a white teacher enters the classroom, white students see him or her as a professor and for the most part do not see race. Race enters the room with each student as well as with the professor. Again, because of the racial hierarchy that privileges whiteness, students of colour and white students remain situated differently with respect to discussions of race and whiteness. Racial balance in the classroom impacts the discussion as well. A discussion with thirty white students and one student of colour would be very different from a discussion with fifteen students of colour and fifteen white students.

The racial diversity of a particular classroom may impact the level of racial awareness as well as the potential for deep conversation about racial justice.

Even when racial awareness exists in the classroom, students and professors are often reluctant to talk about race. White participants may particularly fear making a racist statement or otherwise showing racial ignorance. Faculty of all races fear causing emotional damage to students of colour who may not wish the added attention that a discussion of race may bring to their presence. Any discussion of race, particularly when instituted by a white professor, highlights the presence of students of colour in the room. Yet, presumably, students of colour attend class for their own legal education and not as fodder for white students to learn about race.

A professor may also fear emotional damage to white students. If a discussion suggests a student’s racism, a professor may be unsure about how to handle the backlash from the conversation.

Given these risks and doubts, it is no wonder that many are reluctant to engage the topic of race or whiteness in the law school classroom.

In the face of these obstacles, it becomes important to establish a context for any discussion about race and whiteness, both in the classroom and within the institution. Individual teachers can try to shape their own classroom environment as appropriate for the class subject matter. But faculties and administrators in legal education have an obligation to consider methods to enable these conversations within their institutions. Rather than waiting for a racial justice crisis, such as hate speech directed at students of colour or a campus theme party that insults a racial group, law schools should ensure that channels of communication already exist for discussions about the role of race and the role of whiteness within the legal profession. The following sections discuss some methods for creating those communication channels.

Institutional programming about racial justice, outside of the classroom, provides a sustained forum for discussion. Such programming might involve a film series. Film provides a common context for discussion. Seeing a film with someone of a different race can provide insights for both viewers.

Common reading also provides a context for discussion. A regular reading group for first-year students, facilitated by faculty, introduces race, gender, and other identity-based issues in conjunction with first-year courses. Excerpts from Kimberlé Williams Crenshaw, Foreword: Toward a Race- Conscious Pedagogy in Legal Education, and Jerome McCristal Culp, Jr., Autobiography and Legal Scholarship and Teaching: Finding the Me in the Legal Academy, make a powerful beginning to such a series.

Setting a context for talking about race and whiteness will depend both on the subject area and the size of the class, whether a large section, Socratic-style classroom or a more intimate seminar environment. A growing literature makes suggestions for ensuring that discussions of racial justice issues occur within Socratic-style, required courses. Seminar settings, with smaller numbers and often a roundtable approach, appear more conducive to discussing race in general and whiteness in particular. This section considers both types of classes in turn.

Race is not a major theme in many large section courses, such as contracts or property, as they are conventionally taught. Similarly, in torts, race per se is not a major issue. Race is implicated in areas like damages awarded for injury, but the classic texts assume the racelessness of the subject. Creating common ground for discussion, through the mechanism of assigned reading, is one avenue that facilitates discussion of race and whiteness.

I [Stephanie] decided to inject a series of seven sessions, every other week throughout the term, on theoretical perspectives on tort law. The use of perspectives not only allowed the explicit introduction of critical race theory into the classroom, but it also enabled utilisation of other, better known perspectives, situating critical race theory as an equal to them. Perspectives included pragmatism, critical race theory, law and economics, feminist theory, critical legal theory, process theory, and the practical aspects of lawyering.

Constitutional law classes also provide often unused opportunities to introduce discussions about race. Students perceive the white supremacy embedded in the Constitution, but addressed by the Thirteenth, Fourteenth, and Fifteenth Amendments, as merely historical. This view that the issue of privileging whiteness has been solved eliminates a sense of urgency for examination of the contemporary applications of white privilege that might implicate the students and faculty themselves.

The small seminar-type setting offers its own challenges for teaching about whiteness. Seminar students have often selected the class because of an interest in the subject area, and the small size permits deeper exploration of issues. Yet the smaller size also increases the potential for students to feel singled out or picked on by other students. The professor can set a tone on the first day by setting some ground rules to ensure a safe space for discussion. These volatile issues are difficult to discuss in public space. Yet all benefit from the effort, and the classroom provides space for respectful disagreement.

In addition to readings, the authors have found that two colour insight exercises provide context and engender fruitful discussion: ‘Colour Insight Exercise One (Thinking About Race): What is your Race? How do you know? What is your first memory of race?’

‘Colour Insight Exercise Two (Observation Project): Notice the racial composition of your environment for a twenty-four hour period and record your observations. What are the apparent races of the people you view? Note their jobs and/or the activities in which they are engaged. Note the kinds of interactions you observe and your position. Are you privileged in the interaction? Where are you in relation to Professor Fran Ansley’s ‘power line’? Make sure that you are in several different localities during the day (not just at home or the law library, although time spent in these places is pertinent). Conclude by sharing your reactions about that which you have observed.’

Seminars, Socratic-style classrooms, and law schools as institutions all provide rich opportunities for exploring whiteness. Legal educators need to ensure that students do not encounter race only by happenstance or believe race only affects people of colour. Rather, students should graduate and become lawyers prepared to face the racial justice issues that pervade daily life in the United States.

The norm of whiteness continues to permeate U.S. society. It regenerates through the common tendency of Whites not to think about whiteness. It manifests as white privilege.

Colour insight should displace colourblindness in order to move this diverse nation closer to the democratic ideal of ‘liberty and justice for all.’ Law and the legal profession should work together with communities seeking social justice. Legal educators share a responsibility for educating to develop colour insight by teaching race and teaching the whiteness within race in law schools and in the law school classroom.

The legal academy must name whiteness and make certain that how it teaches about race does not further obscure the role that whiteness plays within law.