Fighting Racism in the Twenty-First Century

As the late Justice Thurgood Marshall noted, twentieth century racism was blatant, intentional, and its existence generally undisputed. The obvious nature of how racism operated in the twentieth century led to the passage of civil rights laws.2 Twenty-first century racism, on the other hand, is more subtle. It is harder to prove intentional racial discrimination today,3 and as a result, its existence is widely disputed. The widespread skepticism of the existence of racism in the twenty-first century was the motivating factor for this Symposium issue, entitled Critical Race Theory: The Next Frontier.Critical Race Theory (CRT) examines how the law and legal traditions impact people of color, not as individuals, but as members of a group.4 Although CRT does not employ a single methodology,5 it seeks to highlight the ways in which the law is not neutral and objective, but designed to support White supremacy and the subordination of people of color.6 One of CRT's central tenets is the pervasiveness of racism in American society.7 At its core, CRT accepts the notion that even in the twenty-first century, if you are a person of color in America, you are the victim of racial subordination.8Given that argument, what is the purpose of the statistical data found in several of the Symposium articles? Is it to prove that subordination and discrimination exist? Why prove something that is a given? This Symposium raises the fundamental question of whether empirical legal scholarship can ever co-exist with CRT.The argument against the co-existence of empirical legal scholarship and CRT is twofold. First, the use of statistical data privileges data and provides support for the notion that numbers are neutral and objective-something that is fundamentally inconsistent with CRT. Second, privileging numbers necessarily refutes the power of narrative.9 Indeed, the use of narrative in CRT has been criticized because of the lack of empirical support for the existence of a distinct voice of color.10The argument in favor of the co-existence of empirical legal scholarship and CRT is, simply put, an attempt to reach out to White America.11 While some may argue that my effort is inconsistent with CRT, I believe it is more important in the twenty-first century to examine data because many White Americans believe that the passage of civil rights laws in the twentieth century has eliminated all but isolated incidents of racism.12 In effect, the only people who can be guilty of racist behavior today are the modern-day analogues of Bull Connor.13 Given that it is no longer acceptable to be overtly racist, the bulk of racism has gone underground.14 Unconscious racism is today's enemy.15 The use of empirical data reaches out to those who are less accepting of the central tenet of CRT, namely that to be a person of color in America is to be subject to racial subordination.16Polls show the skepticism of White Americans concerning the continuing existence of racism.17 Almost two-thirds of Whites are satisfied with society's treatment of both Blacks and Hispanics, while almost two-thirds of Blacks and slightly more than half of Hispanics are dissatisfied with their treatment.18 Blacks' appraisal of their treatment is slightly more negative than Hispanics' assessment of theirs. While one-third of Blacks believe that things have gotten better for Blacks during the last ten years, almost 60% of Whites believe that things have gotten better for Blacks over that same time period.19 Forty-seven percent of Blacks believe they were the victims of unfair treatment in at least one of five situations20 in the past month simply because they were black.21 To the extent data can bridge the racial divide, they should be used.22 Data should not, however, be elevated to the position of being the only acceptable proof of the existence of racial discrimination.This Symposium seeks to show how empirical scholarship can co-exist with CRT. I believe CRT is broad enough to accommodate this union. …