LAW PRESERVES THE PRIVILEGES CURRENTLY ENJOYED BY WHITES

LAW PRESERVES THE PRIVILEGES CURRENTLY ENJOYED BY WHITES

1. LEGAL PROCESSES PRESERVE THE STATUS QUO

Eric K. Yamamoto, Professor of Law, William S. Richardson School of Law, University of Hawaii, MICHIGAN LAW REVIEW, February, 1997, p.846

While political lawyers struggle to cope with the practical ramifications of this dissociation - constricted substantive claims, inhospitable procedures, impatient judges, frustrated clients - progressive race scholars critically search for explanations. Five explanations developed by theorists warrant brief mention. The first is that even the Court's "progressive" antidiscrimination rulings reflect majoritarian interests. From this view, law and legal process tend primarily to preserve the social and political status quo, and thus antidiscrimination law generates illusions of systemic reordering and long-term racial justice. Society perceives the declaration and occasional enforcement of intentionalist antidiscrimination laws as justice done. This perception enables society's majority to believe in equality while ignoring the limitations of legal justice and the persistence of institutional racism. See Delgado & Stefancic, Failed Revolutions, supra note 57 (describing how the methods and structure of legal justice operate to preserve unequal status quo social arrangements while persuading society, including traditional civil rights lawyers, of continuing social progress). Related critiques of law and legal process have been made since the turn of the last century. Those critiques in varying ways challenge the presumed neutrality and objectivity of legal rules in their formulation, interpretation, and application; interrogate legal methods in terms of power; and value and examine the operation and social effects of the legal system.

Eric K. Yamamoto, Professor of Law, William S. Richardson School of Law, University of Hawaii, MICHIGAN LAW REVIEW, February, 1997, p.849

A fourth explanation involves a procedural realism attentive to questions of power and value. I have written elsewhere about how recent efficiency reforms in the law's adjudicatory procedures and the narrowing of remedial options tend to diminish court access for those already at society's margins, especially racial and other minorities asserting novel claims or theories that challenge existing social and political arrangements. Critical sociological proceduralists observe ways in which procedural rules and systems, in formulation, interpretation, and application, often reflect so-called substantive value choices. The collapse of the clean substance-procedure dichotomy implicates power allocation and political value judgments in the framing and handling of adjudicatory process. These theoretical observations are buttressed by 849 empirical studies of court access for disadvantaged groups seeking social structural change through law. The studies identify the ways in which dominant interests exclude from government [justice] agenda issues that threaten the status quo [by the use of] ... "a set of predominant values, beliefs, rituals, and institutional procedures ('rules of the game') that operate systematically and consistently to the benefit of certain persons and groups at the expense of others." As procedural justice research confirms, these kinds of racial minority experiences with legal process, the system's procedures and methods, are likely to influence strongly minorities' overall perceptions of the limitations of legal justice.

WHITES WILL NOT END THEIR OWN LEGAL PRIVILEGE

1. WHITES WILL NOT DISMANTLE WHITENESS

Thomas Ross, Professor of Law, University of Pittsburgh, BUFFALO LAW REVIEW, Winter, 1998, p.79

Thus, many reasons exist to be pessimistic about Haney Lopez's strategy of Whites dismantling Whiteness. First, some Whites are unabashed racists--neo-Nazis, Klan, skinheads, or whatever. Such Whites seek to bolster, not tear down, the edifice of Whiteness. Many more are "race conscious" Whites. The narratives of racism, by whatever name, are a part of their normative universe and provide an essential coherence to their choices and lives. Dismantling Whiteness, for them, means losing that normative coherence, as well as the loss of that psychic comfort of knowing that there is an "other" to whom you are superior. Finally, even for those Whites who reject at the conscious level the narratives of racism, the prospect of confronting and dismantling Whiteness is daunting. First, the strategy of dismantling Whiteness entails loss and the coming of a new, unfamiliar world. Second, the full confrontation of the implications of Whiteness as we look back across the story of our lives has the potential to shatter our sense of self-worth and accomplishment. It is no wonder that Whites fall into a transparent sense of their race. We can't bear to look too closely at our Whiteness. And, I fear, we can't bear to give it up.

Thomas Ross, Professor of Law, University of Pittsburgh, BUFFALO LAW REVIEW, Winter, 1998, p.79

The point is that what Haney Lopez calls the "purely social construction of race," understood as the narratives of a nomos, however evil its nature, may be the last thing Whites would be willing to give up. There's just too much at stake. Haney Lopez understands the basic problem. He in fact projects a deep pessimism about the chances for his agenda of White renunciation and explains this pessimism in the concluding chapter of his book, entitled The Value to Whites of Whiteness. Haney Lopez takes the example of the Supreme Court in the Thind case. Those Justices faced the breakdown of any scientific basis or objective reality against which race might be measured. But instead of questioning the very idea of Whiteness and the underlying logic of the statute's exclusion of non-Whites, the Court instead preserved Whiteness. Haney Lopez explains the Court's response in Thind in the following terms: “While the Court's decision is intelligible on a number of levels, it is perhaps best understood as an expression of the value of Whiteness to Whites. White identity provides material and spiritual assurances of superiority in a crowded society. We should thus not be too surprised that the prerequisite courts clung to the notion of a fixed White race, even when confronted by its falsity.” He concludes his book with the image of contemporary Whites as persons, like the judges of the prerequisite cases, "unwilling to relinquish the privileges of Whiteness."
3. BACKLASHING AGAINST CIVIL RIGHTS PROVE LAW WILL NOT CHANGE SOCIETY

Richard Delgado, Charles Inglis Thomson Professor of Law, University of Colorado, and Jean Stefancic, Research Associate, University of Colorado School of Law, WILLIAM & MARY LAW REVIEW, WINTER, 1995, p.182

Reform through law alone, as we mentioned, is apt to have little effect, because legal decrees succumb silently and painlessly to interpretation and other forms of cultural weight. Even when, as happened with the civil rights revolution of the 1960s, legal reform operates in concert with broader social forces to produce undeniable and much-needed gains, resistance is apt to set in at some point. Consider how today we no longer talk in terms of separateness as an inherent injury, of black schoolchildren as victims, or of racism as a harm whose injury "is unlikely ever to be undone." Instead, we speak of the need for formal neutrality, of the dangers affirmative action poses for innocent whites, and of the need for black Americans to look to their own resources. Moderates and conservatives alike have rolled back affirmative action and challenged university and college theme houses, special curricula, and ethnic studies departments, which they see as violations of the merit principle and fair and equal treatment policies. Courts are quick to strike down set-aside programs and affirmative action plans as "quota systems" likely to discriminate against "innocent whites." The narrative of Plessy v. Ferguson more aptly characterizes our attitudes with respect to race than do the stirring words of Brown.