School desegregation meets postmodernist literary analysis. If this seems an unlikely coupling, it is. Like perhaps many unlikely
couplings, most of the time it works, occasionally it soars, and once in a while it stumbles. To be less fanciful, this is a collection of
nine essays, as well as an introduction by Sarat, that were originally presented at a 1994 conference on "BROWN at Forty" at
Amherst College. As in most collections, these essays vary in range, depth, and quality. They also vary in their degree of
self-conscious postmodernism, although with one exception they all present the image of a younger generation reflecting
sympathetically but critically on the achievement of its almost mythical elders.
Sarat sets the tone for the volume clearly in his serviceable introduction. "When it comes to race and racial issues these are
strange times, confused and confusing times, for all Americans" (p. 3). Agreed, emphatically. "Is taking race into account to
remedy the effects of past racial discrimination a form of racism or a step toward a more racially tolerant society? Can law lead
us away from discrimination and racism? Or is it hostage to prevailing sentiments and opinions?" (p. 4) Excellent questions. He
then moves to frame the volume as "put[ting] aside what I call an `instrumentalist' perspective and instead focus[sing] attention on
questions of meaning and interpretation.... Instrumentalist assessments of BROWN are naturally inclined to see it as failing [I
disagree, emphatically, but that is a discussion for another day]. But for the authors of this volume the significance of BROWN is
that it made it possible to ask new things of law and to tell new stories about what it means to be African American. [Why not
also white American?]" (p. 8).
The essays are divided into three sections, on "BROWN and Its Legal Context," "Racial Discrimination and Antidiscrimination
Law," and "Reading the `Realities' of Race." Within each section, the essays differ in the degree to which they focus
singlemindedly on questions of meaning and interpretation. They also differ on the degree to which they take postmodern issues,
broadly speaking, to be their central concern -- can one talk of "race" without being essentialist? Can universalistic ideals properly
respect racial/ethnic difference? Can one care about material outcomes if one is focused on identity politics? Since the
postmodernist framing of the volume is its most interesting and distinctive characteristic, the rest of my review will consider the
essays according to a "pomo continuum" rather than in the order given in three sections of the book.
Since ideal types are easier to describe than mixed cases, I begin at the two ends of the pomo continuum. I judge two essays to be
outside of the postmodern framing. My colleague George Kateb has a characteristically closely-argued and controlledly passionate
analysis of just "what is the harm of legal segregation of the races?" (p. 91). He mostly engages in a textual exegesis of Justice
Harlan's dissent in PLESSY V. FERGUSON, which famously declared the Constitution to be color-blind. Harlan, and Kateb,
worry about the implications of the fact that "confronted with such blatant disregard to their fundamental rights... blacks have no
reason but a prudential one to accept the U.S. government as their own" (p. 99). Kateb (more than Harlan) also spells out the
harms caused by segregation to the system as a whole and to the segregating white population. It is an elegant and powerful, if
slightly precious, essay.
David Garrow is the other author who resolutely avoids a postmodernist framing. His main concern is to demonstrate how
BROWN began "the post-1954 Court's repudiation of historical intent and meaningful evidence of historical intent in its...
application of... the Fourteenth Amendment." The essay spends little time on BROWN itself, moving quickly to the companion
school desegregation cases, the two legislative reapportionment cases of the early 1960s, and the string of cases regulating sexual
behavior ranging from birth control to abortion. It is a rather traditional doctrinal analysis, with extensive quotations from the
decisions and no attention to the political or social context within which these decisions were reached and implemented. For my
taste, therefore, it is a bit dry and arid.
Two essays occupy the other pole of the pomo continuum. Peggy Cooper Davis begins the book by "performing interpretation" (p.
23). She argues that the plaintiffs' lawyers in BROWN "simultaneously played upon and subverted the image of the United States
as a white polity" by alternately deferring to the white authority structure and seizing the authority to interpret the law on their own
terms. "Their efforts transformed our Constitution, establishing it as an open text -- a text to be (real)ized in interpretive
deliberation informed by previously neglected perspectives" (p. 24). The essay consists in a carefully disciplined micro-level
analysis of the words used in oral arguments before the Court -- who used "politeness markers" and how often, who interrupted
whom, who engaged in "metaframing," and so on. The result has a curiously inbred quality, in my view. But for those who find
microanalyses of language use illuminating, this essay may be a model of how to find the universe in a grain of sand.
Carol Greenhouse casts a wider net in her analysis of BROWN as "the definition of an iconic life story for a particular generation
of African Americans" (p. 171). She analyzes how "federal powers lent their `signs' to public narratives of personal life" (p. 171)
by moving rather quickly from BROWN to a reading of Darryl Pinckney's 1992 novel, HIGH COTTON, and an analysis of the
1991 confirmation hearings of then-Judge Clarence Thomas. As Greenhouse sees it, BROWN provided particular rhetorical
strategies (mostly of "single-stranded `progress'" [p. 176]), set up a Bakhtinian tension between "federal power and contingent
agency" (p. 177), and enacted a distinctive version of Homi Bhahba's concern about "the relationship between the nation and
difference" (p. 182). In so doing, it shaped how African Americans of the civil rights generation saw themselves and their nation.
We have now moved beyond that modernist vision, she argues, into a "postmodern state...whose promise of inclusiveness is
affirmed as its past achievement" (p. 184). Stripped of its (to me irritating) linguistic pretensions, this argument about the new
vision of the post-BROWN generation could be important as well as provocative. But I confess to having a hard time seeing the
forest for all the rather florid trees.
The careful reader will perhaps not be surprised when I assert that I found the five essays at the center of the pomo continuum to
be the most rewarding. All five engage with postmodernist issues, but ultimately reject both the language and the politics of
postmodernism in favor of nuanced and sensitive affirmations of one or another set of traditional values. Since they are in some
ways similar to one another and since I lack space for full expositions, I will outline their arguments and urge readers of this
review to pay close attention to their detailed analyses. Lawrence Friedman begins by asserting that "arguments based on text
wildly exaggerate the impact of text. They assume that the language and the reasoning made a critical difference, as opposed to
what the decision did, that is, its result, outcome, or decree, as the lay public understands and understood it" (p. 51). After throwing
down that gauntlet, he then proceeds to do what "might seem odd" (p. 53) -- that is, examine the text of BROWN and other cases.
It is a bit odd. But the sympathetic reader (of which I became one) can see his mission as showing how the style in which a
decision is written cannot be interpreted apart from both the substantive context into which it is dropped and its influence in
creating the context for the next case. In short, he analyzes style only to deconstruct any claim that it has independent import -- a
pomo thing to do, perhaps, but not in the service of postmodernist goals. He concludes that we should focus our attention on the
virtues and defects of the goals of BROWN itself -- assimilation, integration, racial equality -- and on what we must do now to
"put an end to racism" (p. 65).
Intentionally or not, Paul Gewirtz picks up Freidman's challenge by developing the range and nature of BROWN's impact on
antidiscrimination law. Methodically but not ploddingly, he shows how BROWN affected the treatment of people classified by
gender, age, disability, religion, and "other areas" (p. 115). After explaining why BROWN's antidiscrimination principle
"triumphed," he balances his celebration of that triumph with some "darker" cautions. More controversially, the rest of the essay
addresses the transformation of antidiscrimination law from formal equality to accommodating differences. Gewirtz's attentiveness
to this topic shows his postmodernist sensibilities. But his conclusion that "it goes too far" to substitute the values of difference
accommodation for the values of classical liberalism is, like Friedman's, a deep and important challenge to many scholars' views
on racial and ethnic identity. All in all, a fine essay, which would be a terrific starting point for a vigorous classroom discussion.
David Wilkins' essay on the moral responsibilities of black corporate lawyers is, like several others here, only tangentially related
to BROWN V. BOARD. But it too shows the attentiveness to complexity, renunciation of ideological posturing, and clear writing
that for me are necessary (if not sufficient) elements of a good essay. The essay celebrates Charles Hamilton Houston, using as
its touchstone for contemporary political debates the question, "what would Houston say?" It worries about whether litigation is a
viable strategy for racial change, whether black corporate lawyers can be asked to take on the burdens of fighting for racial
justice, and how they will respond to that claim on their time and emotions. It shows its postmodernist sensibilities by addressing
the issue of racial essentialism; can one make distinctive claims as blacks, on blacks, or for blacks without falling into the trap of
reifying "blackness"? Wilkins concludes that one can, and that for all his cautions there is no excuse for anyone to ignore the
example set by "Houston and Marshall's genius" (p. 157). It is an essay that is both touchingly reverent and stirringly insistent.
Gary Peller's essay is the longest and most complicated of the book, and it is arguably overambitious. It ranges from white liberal
guilt through the Thomas/Hill hearings, the culture of the pre-BROWN south, black nationalism, and school desegregation (among
other things.) The theme that holds this panorama together is the same kind of ambivalence about the politics of difference that
Gewirtz demonstrated. Peller argues that "the rejection of `color blindness' in favor of `multiculturalism' as the frame through
which progressive whites understand racial justice is... a positive development"(p. 191). He is nevertheless concerned about the
"link between the multicultural sensibility and the recent lack of progressive white activism around issues of race" (p. 191). White
liberals, in short, had little difficulty forcing southerners to abandon a discredited racial hierarchy once they had the weapon of
BROWN available to brandish. But black nationalism, the loss of faith in school desegregation and the discrediting of the idea of
"cultural deprivation," and generalized wimpiness (my term, not Peller's) have led progressive whites into a posture of
noninterference and deference that, ironically, echoes the views of market-oriented supporters of laissez-faire. Peller concludes by
proposing a "`postmodern' attitude about cultural difference and nationalist integrity that seeks to retain a liberatory aspect of
BROWN -- the social will to intervene, even forcefully and coercively, to transform oppressive social structures" (p. 192). That
does not sound at all postmodernist to me, but never mind; if the label helps Peller to develop a program for actively promoting
racial interaction around issues of justice and equality, I'll let him call it whatever he wants. An excellent, if too scattered, essay.
Finally, Hazel Carby's brief and forceful essay will have no truck with postmodern sensitivities. Debates over multiculturalism are
"a totally inadequate political response to the conditions of social, political, and economic devastation present in the daily lives of
those who are poor and designated members of so-called minority populations in the United States" (p. 221). Good for her! It's
high time someone pointed out that most contemporary debates about race in America mean less than nothing to a child dodging
bullets in the Robert Taylor Homes (said your humble reviewer, humbly). Carby shows the influence of postmodernism in the fact
that she sees the need to challenge syllabus writers and those who demonstrate an "obsessive engagement... with issues of identity
politics" (p. 222) as much as right-wing "racists." But she sharply rejects the premises of most postmodernists, and concludes that
multiculturalism is at best a panacea for black intellectuals and at worst a distraction from policies that are increasing racial and
class segregation.
It is to Sarat's credit that he ends the book with such a powerful challenge to the frame that he uses to set it up. Overall, this book
provides not only some excellent and rich essays, but also a wonderful experiment in applying an essentially apolitical literary
theory to an intensely political concern. Postmodernism undoubtedly takes some blows, but its advocates might point out that the
most convincing critics set up their criticisms in postmodernist terms. So who, in the end, has won? Taken as a whole, this book
not only makes us think afresh about old issues of racial desegregation. It could also be an extremely valuable vehicle for
discussions in classes or seminars that have ostensibly nothing to do with race, law, or BROWN V. BOARD OF EDUCATION.
