Angela P. Harris, Berkeley Law School
Guest Contributor
In Part I of this reflection on teaching race matters I examined a successful story of co-teaching race and the law in Brazil with Denise da Silva. In Part II I draw on an unsuccessful story teaching race and the law in order to think through how we talk about teaching about race. I discuss three types of issues that tend to emerge – intellectual, interpersonal, and institutional issues. While the specific example I draw on to frame my discussion is from the United States – space does matter – I invite the reader to think through if and how the larger intellectual, interpersonal and institutional issues may also resonate for Canada and elsewhere.
So, the unsuccessful story teaching race and the law: This was a criminal procedure course being taught by a junior colleague at the University of Buffalo, who was not from the United States and frequently worried that she didn’t understand how race operates in the United States. The students were all of visible European descent, although at least one woman identified as (part) Latina. The students were also mostly from western New York. My colleague tapped me to be a guest lecturer in her class, and she wanted me to talk about the connection between race and criminal procedure. I decided not to do so directly, but to approach the subject through the issue of police discretion and space.
Here was my intellectual agenda: Criminal procedure, like substantive criminal law (which I teach), is rooted in culture. The laws don’t make sense unless you understand the cultural norms in which they are embedded. From this perspective, what is the job of the police? It includes a number of things, among them: to “serve and protect;” to prevent crimes; to investigate crimes; and to preserve order. This last function is where we cannot escape what I’m calling “culture” or “social norms.” We could also call it “the unwritten law.” I wanted to persuade the students that we (the hegemonic culture) ask the police to enforce unwritten law, to “keep order.” Keeping order means keeping things, people, activities, and groups in their proper place, both literally and figuratively.
To support this argument, I gave the students a historical story. The method the American police use to keep “order” has changed over the years. Before the 1970s, individual police officers had unguided discretion to keep the peace. Some departments also observed practices such as not policing black neighborhoods at all. They used formal methods such as vaguely written vagrancy and loitering statutes, and informal methods such as coercion and intimidation. In the 1970s, however, a series of cases decided by the Supreme Court attacked this unguided discretion and struck down vagrancy statutes in Florida and California. Under the “void for vagueness” doctrine, statutes so loose that they prohibited whatever the police officer said they did were unconstitutional because they promoted arbitrary and discriminatory treatment. In addition, this period saw new policing theory criticizing beat police for abuse and promoting law enforcement as the primary mission of police.
The liberal story ends here, with the triumph of the rule of law. These reforms were not the end of the police role in keeping order, however. Residential segregation means that there continues to be a clear racial order, and a citizen demand to enforce that order, which the police end up doing in other ways. For instance, despite the prohibition of statutes that are “void for vagueness,” police can target people out of order – people who appear to be racially incongruous with respect to their geographic space – by stopping, questioning, and frisking them although not actually arresting them. And if we trace “residential segregation” back to its origin, we also find the role played by the state, in its role as mortgage guarantor, helping to construct racially identifiable and homogenous neighborhoods.
More recently, we see the police moving away from pure law enforcement and back to policing order. Policing theory has recently extolled “order-maintenance” policing: the idea that aggressively pursuing minor crimes such as vandalism, littering, and turnstile-jumping order reduces more serious crimes. States and municipalities have also recently turned to more sophisticated campaigns of geographic restriction, meant to control the dangerous and disorderly classes and preserve urban spaces for economic consumption.
These new initiatives include “quality of life” offenses, such as sleeping on public sidewalks, which mostly target homeless people; anti-immigrant ordinances; gang injunctions; and injunctions that prohibit individuals from entering certain neighborhoods or zones of a city.
How did I get the students to engage with this material? I asked them to talk about the neighborhoods where they grew up or where they live now and what they know about “good” and “bad” parts of town, and/or what they were told as children about “nice” and “bad” neighborhoods. My goal wasn’t to get them to admit outright that black people are associated with “bad” neighborhoods, but just to get them to realize that the new initiatives scholars are writing about are part of the common sense of United States spatial arrangements. “Everybody” knows the unwritten rules. It should not therefore be surprising that the police are charged with enforcing those rules, or at least using violation of those rules as a proxy for possible antisocial behavior.
I did succeed in getting them talking about this, a little bit. But they did so with a great deal of attitude – crossed arms, staring at the desk, silence. They were resentful at having to talk about race and suspicious that I was trying to get them to feel like perpetrators. They didn’t have to submit teaching evaluations on me because I was a guest lecturer, fortunately, but I think I know what they would say.
So now let me turn to the “three I’s” of how we talk about teaching about race. For convenience, I’ve made up a three-part framework: first, there are intellectual issues; second, there are interpersonal issues; and third, there are institutional issues.
First, a really important intellectual issue in teaching about race to non-Native American or Aboriginal people is dislodging their identities – again, because in the United States and Canada, and probably in all white settler countries, the minority, food-group picture of identity is everywhere. My friend Frank Valdes teaches at the University of Miami and says his teaching mission is to teach his Cuban students that they aren’t white. My friend Tucker Culbertson teaches at Syracuse and works with white students to teach them that they aren’t white, either. This is obvious to students of Irish, Italian, Jewish immigrant experiences in North America. But even students who are solely of British or Scottish descent need to understand how “whiteness” was understood over time and space, and which groups were understood as white and which ones were not.
A related intellectual issue that is important in the United States and Canada, particularly in law, is dealing with the Indigenous/minority divide. In the United States there is an absolute split legally and politically between Native Americans and racialized minorities. Federal Indian law and tribal law are considered boutique courses, and are taught as if they are unrelated to anti-discrimination law. This reflects the path that the Supreme Court has taken, which is to make “race law” about minority rights and “Indian law” about sovereignty.
The political split mirrors the legal split. In the United States there is very little consciousness, even among African American students, that sovereignty has been an issue for black people too. The black students all want equality and are not interested in sovereignty. There’s a further politics of mutual distance and suspicion between Native Americans and minority people, fostered by the longstanding divide and conquer policy of the federal government to refuse to recognize any Native Americans who intermarried with black people.
Another intellectual project in teaching race, again particularly important in law schools, is undermining students’ belief in law as the path toward justice. It’s not that rights and law don’t matter at all. It’s that because of interest convergence, rights and law will only ever get you so far.
Second, in terms of interpersonal issues, there are a number of familiar games that the teacher has to be prepared to negotiate. These games are produced by the larger North (and South) American cultures, in which formal commitment to racial equality coexists alongside a deep and enduring material and symbolic commitment to maintaining the status quo. Conversations about race – especially interracial ones – are practically taboo in this environment, for they destabilize a fragile and tense interracial peace meant to paper over the contradictions. And, most often, they are experienced as personally threatening to white students – and sometimes colleagues – as the dominant group. A sense of threat may push white students toward denial and ignorance of minority experiences, while students of color may claim a lack of interest in racial issues, or adopt an unexamined ethnic pride.
Then there are games people tend to play when we talk about race. For instance, there’s the “I’m not in this” game. This is usually played by white people who tend to preface their remarks as follows: “I’m not a racist, but;” “Race doesn’t affect my life;” “I don’t really see color;” and “I’ve never really thought about race.” As well, there is the “people of color are biased” game also popular with some white people: “People of color play the race card;” “people of color are negative” and “people who talk about race are angry” (this includes you the teacher, by the way). And there is the very complex game of identity performance: On the one hand white students often disclaim any racial identity (see the “I’m not in this” game). On the other hand, students of color may assert allegiance to a particular race-ethnicity while holding hegemonic stereotypes about other identities (e.g. some my African American students called for “Muslim” profiling after 9/11).
All of these interpersonal games are made more complex by the fact that the teacher is inevitably the target of student cultural and psychic projections. The teacher has to try to establish “safety” for all students to talk openly, a contradictory task because, as we have just noted, to hazard an interracial conversation about race at all immediately violates a social taboo and creates an unsafe space. And in national cultures like the United States and Canada in which there is little understanding of social structure, everything becomes personal and interpersonal. The teacher’s personality and conduct can easily become the main theme of the class, not the structural issues she was trying to raise.
Third, and finally, in terms of institutional issues, there are a lot of factors that can make the job of teaching about race easier or harder. Demographics make a difference: as advocates of “diversity” in the United States and Canada have argued for years, a critical mass of faculty and students of color is essential for conversations that will go beyond the polite and guarded. Institutional culture also makes a difference: faculties, departments and campuses wedded to preserving civility may see critical engagements of race as too unsettling and thus lean toward the status quo, even if it is inequitable. If talking about race is unusual for a department or on campus, a course about it will be viewed with great suspicion. As in the story with which I began, a comparative focus, and experiential immersion in an unfamiliar culture, makes things easier.
As you can see, these reflections on teaching race, space and the law have been very far from a “how-to” offered by an expert.
Angela P. Harris is a professor of law at the University of California-Berkeley School of Law, and Acting Vice-Dean for Faculty Research and Development at the University at Buffalo Law School, State University of New York.