Angela P. Harris, Berkeley Law School
Guest Contributor
These reflections are based on a workshop I conducted on “teaching race and the law” at the University of Alberta this past October. I hope these reflections will be useful to those teachers who are thinking through course goals, learning objectives, and expectations in different geographical and cultural spaces. Teaching happens in a lot of places and a lot of ways. I have been a classroom law teacher for the last twenty years. So that’s a lived experience that I can speak from. But as a person of color, and as a person raising kids of color, and as a person whose lover is white, I’m also teaching about race, and thinking about how to teach about race, all the time. Similarly, all of you have likely had the occasion to teach about race, whether formally as professors or graduate student instructors, or informally in your lives. So I am approaching this discussion as a facilitator, not an expert.
I’d like to start by telling you a couple of stories about my own recent experiences in formally teaching race and the law and some lessons that may be learned both from successful experiences and not so successful ones. In Part I of this reflection I will offer some reflections on a successful story teaching race and the law. In Part II will offer some reflections on a less successful story teaching race and the law.
The success story concerns a course that I co-taught with Denise da Silva, who teaches in the ethnic studies department at the University of California, San Diego. This was a course in a multi-university study-abroad program run by Colin Crawford at Georgia State University and co-sponsored by Seattle University and the University of Tennessee. The program was housed at the Universidade Cândido Mendes in Rio de Janeiro, Brazil, and students at that university took the courses in the program alongside the North American students.
The students enrolled in the program were mostly North American, but there were some Brazilian students. In terms of racial identifications, it was a mixed group with mostly white students but several African American students (women), Asian students, including east and south Asian. They came from Tennessee, Seattle, and Georgia. The first challenge was when Professor Crawford asked Professor da Silva and me not to put the word “race” in the course title. This reflected the complicated history of race in Brazil, which I will return to. So we called the course “Social Equality and the Law.”
Teaching about race in Brazil was unsettling both for our North American and South American students. It enabled us to take the students beyond an identity politics understanding of race, which is where many courses on race in the United States and Canada are focused. Instead, we advanced what we called a “racial formation” approach, borrowing from Michael Omi and Howard Winant’s classic book. This view holds that “problematizing race is not enough. We must steer between the Scylla of thinking that race is a mere illusion, mere ideology (in the sense of false consciousness) on the one hand, and the Charybdis of thinking that race is something objective and fixed. Both of these positions have their temptations” among social science and humanities scholars.
…[Omi and Winant] looks at race not only as the subject of struggle and contest at the level of social structure, but also as a contested theme at the level of social signification, of the production of meanings. By the former we mean such issues as the racial dimensions of social stratification and distribution, of institutional arrangements, political systems, laws, etc. By the latter we mean the ways in which race is culturally figured and represented, the manner in which race comes to be meaningful as a descriptor of group or individual identity, social issues, and experience.
What do I mean by an identity politics understanding of race? I’ll take as an example the structure of our casebook, Race and Races: Cases and Resources for a Diverse America. (I’m allowed to criticize it because I’m a co-author.) Chapter 1 of Race and Races talks about race as a social construction. It asks students what race they are, and how they know, and it contains a case and some readings that suggest that ascribed and claimed racial identities change over time, both in terms of different groups being differently racialized and in terms of individuals sometimes moving between ascribed and/or claimed racial identities. So that’s all meant to destabilize the familiar common-sense assumption that racial identity is biological and fixed.
But the next four or five chapters of the book consist of the legal histories of different racial groups. We have a chapter on African Americans, a chapter on Latino/as, a chapter on Asian Americans, a chapter on Indians, and a chapter on white people. And the theme-based chapters, such as the chapters on equal protection, marriage and the family, and the criminal justice system, work within the familiar frame of race relations. How have particular racial groups been oppressed, how has the law contributed to that oppression, and what might the law do to ameliorate that oppression?
The value of this approach is that it meets the students where they are. Our students all came in knowing exactly which food group or groups they were in, at least in the American system. Or, if they fell outside the food groups, like Muslim or mixed-race students, they knew how and why. The problem with this approach is that in the United States unless you’re a Native American or in Canada an Aboriginal person, your food group identity is likely to be disconnected from any understanding of colonialism. Minority identities as we deploy them in the United States, for example, stem from the kind of history that begins at the founding, rather than before. Minority (non-Native American, again) identities in the United States are also the product of a national politics of “diversity,” within which every group is different and equal under the law.
There was an analogue of this for the Brazilian students. We had two students, who were very light-skinned and middle class, and who insisted that there is no racism in Brazil and they personally had no race consciousness and didn’t know anyone who did. Their identities stemmed from a national politics that has long embraced the idea that Brazil is a “racial democracy,” made up of people who are all of mixed descent – Indigenous, African and European – and who, in the national mythology, were all the same.
Professor da Silva and I wanted to do something different. We wanted to get the students to see that their own racial identities, which they understand at some level to be natural, are products of political and economic power working through history. We didn’t want to begin with the assumption that there were races, but to understand the formation of racial identities that then struggle for “equality” or “sovereignty” as secondary to projects like colonialism, imperialism, and slavery.
How did we do this? First, the North American students’ common sense about racial identities didn’t work at all in Brazil. The North American students were completely disoriented by the fact that they saw what they took to be “white” and “black” people all around them, but the white people said they weren’t white and some of the black people said they weren’t black. They were also disoriented by the fact that they were being taught by two black women – which most likely none of them had ever experienced – and one was a law professor from North America and one was a social theorist from South America. But the performance politics of the course is a whole other story.
The North American students’ common sense about the distinction between black people and Indigenous people was also unsettled. For example, we studied “quilombos” – settlements begun by runaway slaves that became self-governing and now are being recognized by the Brazilian government as entitled to some land rights and some cultural autonomy rights. Quilombos trouble the distinction between black people, who are supposed to want inclusion and equality, and Indigenous people, who are supposed to want separation and sovereignty.
The South American students’ common sense about identity also didn’t work in the context of our course. They were sure that racial hierarchy doesn’t exist in Brazil, only class hierarchy. We introduced them to historical and sociological materials that suggest that Brazil’s “racial democracy” is itself a racial project that has been used to further the interests of elites at the expense of racialized groups.
The second thing that helped us unsettle the students’ racial identity frame and move toward a racial formation frame was a common history in North America and South America. The identity categories are different in Brazil and the United States but what is common to both countries are the racial projects, including histories of colonialism, genocide, and slavery in the past. In the current moment it includes economic globalization and inequality; and a criminal justice system that disproportionately profiles and targets racialized people and Indigenous peoples. Paradoxically, the current moment also includes the emergence of ideologies about racial “diversity” and racial “democracy” that attempt to divert our attention away from the inequitable means by which people make money, amass political control, and gain pleasure from the suffering of others, and towards the competition for a liberal “equality” that by definition can’t ever be fully achieved.
This brings me to the second goal of our course. If the first goal of our racial formation approach was to get students to focus on racialization itself, rather than racial identities, our second goal was to shake our students’ faith in the law, especially equality law, to repair the violence, past and present, accomplished by racial formation. There are limits to the law’s ability to repair past wrongs and students need to ask questions about why. The standard way of doing this in a race and the law course is to show how far each of our minority groups is from actual equality with white people, and how present-day law is not only unhelpful, but actually may be harmful, in helping address historical and contemporary disparities.
Professor da Silva and I drew our students’ attention, instead, to how the goal of “equality” itself is already a racial project, in the sense that it makes a fatal compromise with race. We looked at all the reparation claims that lie outside equality law and are therefore illegal, improper, “unrealistic,” and “political” rather than legal: claims such as “Give the land back that you stole from the Indigenous peoples” and “give the wealth back that you made off of slavery.” You are not able to ask for those things within the legal system, or if you are allowed to ask for them, you’re never allowed to get them. Drawing that line between what you are allowed to have and what you actually might want is itself a racial project. Our final exam gave the students the opportunity to think through all the things you are not allowed to ask for in legal discourse, and got them to imagine they were an inter-American tribunal hearing the same claims being made in Brazil and in the United States: How might those claims be heard and answered similarly or differently? How might they be heard and answered in Canada?
So this was our ambitious teaching agenda, ambitious because we only had two weeks to accomplish it all! But it worked. We got the students to go on an analytical and experiential journey with us to a surprising extent, and we even had students thank us for helping them make sense of their time in Brazil. I think the reason why we were so successful was the differently racialized space we were all in. The challenge would be whether and how it’s possible to teach such a course in a less heterogeneous space, and without that literal disorientation. In Part II, I will examine a less successful experience teaching race and the law.
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.