Dissenting Opinions


Episode Summary

In the season finale of Deep Dive into Critical Race Theory, Will and Khiara discuss power, privilege, white supremacy, the possibility of a racial utopia, and confront the fundamental question: can one be a critical race theorist and also an individualist?

Episode Transcription

[Dissenting Opinions theme]

Will: Welcome to Season 2 of Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Baude and you're listening to a special series we're calling Deep Dive, where a guest and I will take a deep dive into a legal topic. This series will be me and Berkeley Law Professor, Khiara Bridges, talking about critical race theory. Without further ado, let's deep dive into critical race theory.

We keep coming back to power. We keep coming back to this, at least we're thinking about the actions of the government and we're thinking about them at the structural level. Of course, yeah, we keep coming back to the problem of the problem of power. Yeah, does this critical race theory give us traction there. There's either the obvious-- We have voting rights doctrine, and voting rights cases, and stuff like that. But I don't even know if that's the most useful lens or you tell me if it is. Yeah.

Khiara: Yeah. Well, power, we know that it exists. It's like gravity. [laughs] We are living the effects of it every single day. It is invisible a lot of times, but it's probably exerted in myriad ways, very different ways. I think that voting is-- and again, critical race theorists have spilled lots of ink writing about loading political power is important and I think that's one way in which power manifests and is exerted. But I think that when critical race theorists think about power, it's not just [unintelligible 00:01:53] to voting. But something like the term, racial power, and the sense that there's a disparity in power between racial groups and I don't think it's reducible to voting in like who's in Washington or who's in state legislature. I think it's bigger than that. I don't know. I have to think through that a little bit more. But I do feel comfortable saying today that political power and the right to vote is incredibly important but I don't think that power is reducible to that.

Will: Right. As long as the country is majority white and as long as the country is a democracy, you might think then the power problem is unsolvable. There's always going to be-- You can move it around a little bit, but you can't get away from the fact collectively that white people have more power than nonwhite people.

Khiara: Yes, but white people are a heterogenous bunch as well, right?

Will: I hope so, I hope so.

Khiara: [laughs] That's actually some of the most exciting stuff that I've seen in race scholarship and critical race theory, is thinking about this concept of white supremacy and thinking about how white supremacy hurts white people too. [laughs] One of my articles that I think, it was 2020, I was just interested in investigating how white supremacy harms white people, because we can identify practically, in very practical ways, how white supremacy hurts white people. Then, it makes it true that simply because we're a majority white nation, it doesn't mean that white people will act in concert and box nonwhite people out. I'll just be really very concrete with that, I write about reproductive rights and reproductive justice.

I was interested in how these prosecutions for opioid and methamphetamine use during pregnancy might be a manifestation of white supremacy biting white people in the butt. Unlike the crack epidemic of 1980s and 1990s, the opioid crisis tends to be at least associated with white people. Nonwhite people are dying a lot from opioids, but white people are also dying a lot from opioids. They're also using opioids and methamphetamine a lot. We've seen prosecutions for opioid use and methamphetamine use during pregnancy. And so, much more than during the crack problem of the 1980s and 1990s and the people who are being prosecuted for methamphetamine and opioid use during pregnancy are white. 

I wrote a whole article about this, because I was like, “How is that--?" When you hear the prosecutors pressing these charges and pursuing criminal punishment talk about the problem, it appears to be that they are worried about white women harming white babies. These precious perfect white babies that these white women are just damaging through their irresponsible opioid and methamphetamine use. I was thinking about that in terms of this privilege of being imagined to reproduce the future, the future white nation, how that's being weaponized, and people are being punished for thwarting the realization of these perfect white babies in this white future. I think that's white supremacy biting white people in the butt.

I think that we might trace how white supremacy bites white people in the butt through, I don't know, other areas. Maybe guns, maybe this COVID disaster. I don't know but I think it would be beneficial to show that simply being part of a group that has the most racial power in the nation might actually disadvantage some parts of that group, which would then incentivize the parts that are disadvantaged to align themselves with others who are disadvantaged by white supremacy.

Will: That's really interesting. Okay. I guess, I see that example and I was trying to think about whether there are others, whether we can imagine the same thing happening when we get to residential segregation or something, or some of the places we started.

Khiara: Yeah, I wonder, I wonder, I wonder. Well, maybe we could talk about it in terms of Medicaid.

Will: Yeah.

Khiara: There are a lot of states that have chosen not to expand Medicaid, let alone the whole question of Medicaid reimbursement rate, a bit irrelevant. But we might do an analysis of how the contraction of the government, the position that the government is not responsible for a basic need like healthcare has been aligned with a view of what this nation requires, how this nation figures as a white nation. And so, if white people are acting in a way that they think is consistent with what the nation requires, that's actually against their interests, because now they don't have health insurance.

In order to make that argument, this is white supremacy biting white people in the butt, we would have to do the work of tying together small, neoliberal government with whiteness and other folks have done it. I think there's a book called Dying of Whiteness, which I thought was really interesting and it was about actually gun rights, I believe, and opioids, and tying both of those phenomena to whiteness. So, yeah, that's a project that I would be interested in reading. [chuckles]

Will: Yeah. I hate to make Derrick Bell the silent third partner on this podcast. 

Khiara: [laughs] 

Will: But it feels a little bit full circle in the sense of, as I understand it, Bell's interest convergence critique of desegregation movement was, “Well, you only got desegregation when it suited the interests of white people and you stopped getting it once it didn't anymore.” It seems now we're coming back to that.

Khiara: Yeah.

Will: "Well, we're only going to dismantle white supremacy to the extent that we can convince white people that doesn't serve their interests anymore." I guess if it goes to Derrick Bell were here warning us, he'd say, “You go down that road, you're not going to get very far. You get as far as we gotten desegregation,” which I guess, we've got it. It's not very far. Maybe that's too pessimistic. Again, maybe-- [crosstalk] 

Khiara: [laughs] We’re going to end this podcast on a high note. [laughs]

Will: Right. Maybe there's some reason that the interest convergence thesis doesn't have to be a council of despair, and if you're aware of it, you can approach it better.

Khiara: Yeah. 

Will: I don’t know what that is.

Khiara: Well, I think that one distinct difference, perhaps between what Bell observed about the Cold War and desegregation, and what we might be talking about right now is that Bell was talking about powerful white people. [laughs] And powerful white people got it within their interests to desegregate, because then we, the nation, would be able to gain the sympathies and also the markets of these decolonized African nations, and these decolonized nations in Europe and Asia. I think what we're talking about is decidedly not powerful white people. [laughs] I think that we're talking about the most marginalized white people who need healthcare that they can't access through their jobs, because they might not have a job, the communities that are dying from opioid decimation. There's definitely class variation but it tends to be hitting poor white communities the hardest.

And so, I think that maybe that's a different analysis-- or it add some nuance to the Bell interest convergence thesis. Like, “What happens when it actually marginalized the white people who we do this for? Will the trajectory be different than what we have seen in the desegregation context?" Yeah.

Will: So, this is maybe successful class solidarity can be the glue that holds together a movement for racial justice.

Khiara: I think so, My colleague at Berkeley, Ian Haney Lopez, he's all about class solidarity. He's a critical race theorist, who thinks that class solidarity is key. I tend to believe as much and I just think that traditional critical race theorists would remind Ian Haney Lopez as well as myself that even though class is an important element of this story and class solidarity probably is a prerequisite and needs to be a condition precedent to any achievement of social justice, if you will, the race still matters. And so, I think critical race theorists would be on the lookout for how race matters in our moments of class solidarity.

Will: Yeah. Since we're getting hopefully utopian, I guess one of the things I keep wondering about it is it doesn't quite fit in anything we're talking about, but I keep wondering about it, which is can you be critical race theorist and a radical individualist, or even--? Can you think in an ideal world, everybody's just judged as an individual and the color of their skin is irrelevant, we only care about the content of their character, and so on. I recognize we don't live in that world and we've never lived in that world, but we should live in that world, we should try to live in that world, in a world where race doesn't matter. Can you have that ideal and also talk about critical race theory or is it part of the message of race theory to reject that ideal as naïve, or not ideal, or something?

Khiara: Well, I know that I have to choose one and two. [laughs] First answer is-- [laughs] 

Will: [laughs] Yes or no?


Khiara: It's complicated. That's the answer. 

Will: Yeah. 

Khiara: I think that the first answer would be that critical race theory, so far has counseled that even if that is our goal, radical individualism, we can't treat the ends-- we can't confuse the ends and the means. We see, let's say, Chief Justice Roberts saying that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That's the confusion of means and ends. Our program for making race matter less or not at all, can't be. Well, let's just pretend that race doesn't matter at all. That's a recipe for disaster, according to critical race theory. So, that's answer number one. 

Answer number two is-- actually in my primer, I talk about like, there's no consensus about what the goal, what racial justice looks like. When you sit down 10 critical race theorists and you say, “Okay, sketch racial utopia. [laughs] Sketch your utopia of what racial justice looks like,” I won't say you'll get 10 different sketches, but you're probably going to get 5.

Will: [laughs] 

Khiara: So, it's unclear. It's very much undecided what it is that we're fighting for. Are we fighting for a world in which race exists, I'm able to look at you and you say that's a white person, you're able to look at me and say that's a black person, and I'm able to look at someone else and say that's like-- Race still exists, but it just doesn't overdetermine our lives. It just doesn't. There's no correlation between one's racial identity or description on whether you're going to die a violent death, or whether you're going to get sick from COVID and die, or whether you're going to be incarcerated or not. There's just no correlation between race and outcomes.

And then, another position is that what we're fighting for is a world where race doesn't exist, where it makes zero sense to talk of, let's say, that someone is a black person. It’s just not a coherent thing to say it's unclear whether that's what we are fighting for. The people in the former cap, the folks who would say, "We're fighting for race still exists. It just doesn't determine whether you live or die." I would say that they're positive aspects of race. It's not all bad. It's definitely been used for nefarious purposes, but it's not all bad.

For example, I went to a historically black college and university. I went to Spelman. We had a great time as black people there. There's a history that we shared. Because race matters, there are certain experiences that we had all gone through at some point in some form or fashion. Race has created a community because race matters. Some aspects of that community are worthy of celebration and retention like we shouldn't just throw it out. And that's an argument for keeping race. Others say, “Race was invented for the purposes of inequality.” Race was invented in order to create a group that was to be used as human property to exterminate another group and say they didn't really own the land. Race was invented for those purposes. And so, to try to rehabilitate it, if it is something that has value, it's like trying to keep a cancer because, well, it's a part of you. Yeah, I would say that there is definitely dissensus around that.

Will: I guess that's why I hear and read a lot. I don't totally understand. I hear and read a lot the claim that race is socially constructed. If that's right, then can't we just deconstruct it? No one of us can, because that's the-- 

Khiara: Right.

Will: But can't we just stop doing that? Maybe the [unintelligible 00:17:42] putting it a little too simple, but if we scale it up a little bit? Can we say, not just one court or one school system, but if it's really just socially constructed, can't we just say, “Well, this is no longer a thing. We hereby all 300 million, 6 billion of us agree”?

Khiara: [laughs] Right. As a person who takes her work to be an investigation into how race is socially constructed, when I was a 2L in law school, someone told me race is a social construction, I was like, “Oh, my God, boom, mind blown.” Because up until then, I had thought it was this biological essence that we all carried around. So, someone told me, “Oh, racism social construction," I was like, “Yes.” And then the next day, someone said, “Race is a social construction,” I was like, “Yes.” And that happened for every day for the next six months and then I was like, “Okay, how is it socially constructed?”

Will: [laughs] Yeah.

Khiara: Because if it's socially constructed, we should know how so that if we're interested in either deconstructing it or constructing it in a different way, we know what we need to do. And so, I take my entire body of work to be an investigation as to how race is socially constructed. When you propose that if it's constructed, we just need to deconstruct it. I just know that the processes by which race is socially constructed are incredibly complex. But now, they're all so spectacular and they happen all the time, and they very rarely happen. And so, it's just like a very big process.

I might actually be contradicting something I said earlier, for the laws to say, "We hereby declare that we are no longer participating in the social construction of race," because the processes are not always intentional, because we don't even always know that they're happening, for the law to step out will do nothing when it comes to all these other things that are in operation that will continue to make race socially real. Then, the danger is that the last steps out is think it's not participating, but it in fact, it is either participating by omission or in it stepping out, it is allowing the wheels to turn.

Will: That's maybe because we're being too lazy. If we don't just say, well, law out, see all, we say like, “No, I understand just a lot of it's implicit. So, I've got to master my closet biases, but I meditate and self-discover, and I learned to pass the IAT with flying colors.”

Khiara: [laughs] You got a 180 on the IAT.

Will: [laughs] 

Khiara: That's a FA, LFA-- [crosstalk]

Will: It’s the new college admissions test.

Khiara: [laughs] 

Will: Then, I take it that's still not going to be enough somehow. 

Khiara: Well, so, then what you just said was very individualist, right? 

Will: Yeah, exactly.

Khiara: We might get individuals on board to say, “Hey, listen, this thing is a social construction. Stop trying to act on it.” [laughs] And individual's like, “Yes, I'm going to stop trying to act on it.” One thing I always write about when I write about the implicit biases, an implicit association test is that we keep focusing on implicit biases without paying attention to the context, which makes implicit biases in the first instance. So, we have this association between black people and criminality, black men and criminality. So, we know that you associate black men with criminality.

When somebody walks into Starbucks, black man walks in the Starbucks and the manager is like, “Ah, criminal.” [chuckles] We intervene and we say, "Uh, uh, uh." There's an association between black men are criminals and you have to disassociate those things. We worry about individuals and moral education without worrying about the context that makes black men come to be associated with criminality. Our jails and prisons, they're disproportionately housing black men. If our jails and prisons didn't disproportionately have black men, I wonder if police didn't disproportionately throw black men up against the wall to suppress them. I wonder, I wonder, I wonder if those things were not true, whether people would have implicit biases and associate black men and criminality.

I say all that to say if we're interested in deconstruction and we only focus on the individual, everything else, arrest, and incarceration, and jails and prisons, and probation, and all of that still turns, then we might have allowed the individual to step out of the social construction of race. But the society's construction of race will persist.

Will: Yeah, unless enough individuals start doing it, I guess. 

Khiara: Enough individual start doing it in the sense of like, “Okay, not only am I going to make sure I don't have implicit biases, but I'm also going to figure out another way to solve social problems besides arrest,” and maybe arrest is unnecessary, I don't know. Jails and prisons, I'm going to figure out another way. We, all individuals, because institutions are made up of individuals. So, enough individuals are on board, then we can change the institutions and then the institutions won't participate in the social construction of race alongside the individuals. That just sounds so utopic to me. A utopia, I think, that is achievable. I think we could do it. We created the world. We've created it-- I mean not the world, not the actual Earth, but we created society and we can create society differently. Yeah, I think that's what critical race theory is interested in, creating society differently.

Will: That's amazing and has to the perfect note to end this, I think. [laughs] 

Khiara: And I didn't even mean to.


Will: No, that's amazing. Yeah, I feel there's tons more to say, but also again, that was the perfect crescendo. [laughs] 

Khiara: Well, I've had a ball talking with you about critical race theory. I think maybe again, this is a weakness of the theory, but I think it leaves more questions than answers.

Will: Yeah.

Khiara: But I think that constant interrogation, I think we talked about this on our first conversation, that's what makes it critical. Constantly questioning the assumptions. Yeah, so, I think that it leaves us with more questions than answers and yeah, I'm going to leave that as a strength and not a weakness of it. [chuckles]


Will: Thanks, Khiara. For updates on future episodes, follow us on Twitter @uchicagoconlaw. Make sure to subscribe, rate, and comment wherever you get your podcasts.


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