The Spirit of Brown

This chapter lays the foundation for an understanding of the socio-legal race problem and possible solutions. It begins with the Supreme Court’s inglorious racial history in which the Court, from Dred Scott up to Brown v. Board of Education, engaged in a pattern and practice of sabotaging black equality granted by Congress. Racial oppression, including the torture and murder of blacks without trial, was part of a national narrative largely written by the Supreme Court. Brown was a conscious attempt by the Court to reverse its inglorious racial past. Brown had a profound effect on racial progress, changing the legal status of blacks which in turn greatly improved their socioeconomic and socio-cultural position in our society. But the Court, in the years following this landmark decision, did not remain faithful to the spirit of Brown. It began to impede black progress through its civil rights rulings by suppressing the black equality interest litigated in those cases. This is juridical subordination, which can be resolved if the Supreme Court remains faithful to the spirit of Brown. This is good social policy.

A New Understanding of Racial Subordination

This chapter introduces three main themes presented in the book. First, racism is not coterminous with racial inequality. The term “racial subordination” is used in a new and more useful way to refer to a non-nefarious external source of racial inequality. This discussion revolves around an illustration that clearly demonstrates the difference between racism and racial subordination. Second, though motivated by a non-nefarious reason, racial subordination is not racial innocence. Allowing racial subordination to persist effectively creates a racial glass ceiling. For that reason, it is bad social policy. Third, even well-to-do blacks are vulnerable to racial subordination. This means that the race problem is not simply a socioeconomic problem requiring a socioeconomic solution. The race problem in post-civil rights America is, in fact, not one but three interrelated problems (a three-headed hydra)—socioeconomic, socio-legal, and socio-cultural with the latter two manifested mainly as racial subordination. This book focuses on the subordination side of the race problem.

Race and Culture

The conflicting racial and cultural values that underpin much of the Supreme Court’s decision making in civil rights cases are brought under critical review in this chapter as part of a larger argument regarding cultural diversity made in the next chapter. Thus, this chapter is a bridge between the socio-legal and socio-cultural race problems. In preparation for arguing in the next chapter that cultural diversity rides with a corpse in its cargo—to wit, cultural subordination—this chapter discusses the conflicting racial and cultural crosscurrents of the American middle class and working class. White-middle-class values, more than any other values, shape the American mainstream culture—“It’s the Middle Class, Stupid!”—wherein the problem of cultural subordination lies.

Juridical Subordination

This chapter focuses on the socio-legal race problem; namely juridical subordination. The Supreme Court engages in this form of racial subordination when its rulings freeze or impede racial progress for the sake of pursuing a nonracist, competing interest. Juridical subordination most often occurs today in the name of racial progress; in other words, when the Court’s vindication of a black equality norm (such as racial omission or racial integration) in reality inhibits black advancement. Since the end of Jim Crow, the black equality interest has been defined in ways that compete not only with the civil-rights-era norms but with other legitimate norms. Focusing on cases involving antidiscrimination law and racial preference (or affirmative action) law, this chapter illustrates how the Court can avoid juridical subordination in its civil rights cases.

Unrelenting Racial Progress

Beyond the usual coordinates of racism, conventionally defined, and socioeconomic class lies a form of racial inequality that has not been fully studied or developed in scholarly circles or public discussions about the problems African Americans, or blacks, face in our post–Jim Crow society. This form of racial inequality subordinates racial advancement to competing nonracist interests. It disadvantages all blacks, including the rich and famous—Oprah and President Obama—by making it more difficult than it otherwise has to be for blacks to climb out of the abyss of racial degradation wrought by slavery and Jim Crow. Racial degradation strikes at the heart of basic equality; that is, human dignity, equal worth. I call this form of racial inequality racial subordination....

Cultural Subordination Through Cultural Diversity

Cultural subordination is defined here as the suppression of important black values or folk ways—questions and concerns of keen importance to blacks—in the American mainstream culture. Like juridical subordination, cultural subordination is animated by post-Jim Crow norms that perform important rhetorical and regulatory functions in civil rights discourse—racial omission (traditionalism), racial integration (reformism), racial solidarity (limited separation), and social transformation (critical race theory). After defending the belief that blacks do have a distinct set of values that transcend class stratification, and after discussing the legitimacy of cultural diversity in American society, this chapter crafts four models of cultural diversity defined by these post-Jim Crow norms—cultural assimilation (traditionalism), biculturalism (reformism), cultural pluralism (limited separation), and transculturalism (critical race theory). It then proceeds to explain how most of these visions of cultural diversity subordinate legitimate black values. Deploying these models to purposefully enhance our racial democracy, which lies at the root of cultural diversity, can reduce (but not entirely eliminate) racial subordination in the American mainstream culture.