Race, Law, and Culture: Reflections on Brown v. Board of Education / Edition 1

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When it comes to race and racial issues these are strange times for all Americans. More than forty years after Brown v. Board of Education put an end to segregation of the races by law, current debates about affirmative action, multiculturalism, and racial hate speech reveal persistent uncertainty about the place and meaning of race in American culture and the role of law in guaranteeing racial equality. Moreover, all sides in those debates claim to be the true heirs to Brown, even as they disagree vehemently about its meaning.

Race, Law and Culture takes the continuing controversy about race in law and culture as an invitation to revisit Brown, using this case as a lens through which to view that controversy and the issues involved in it. The essays collected here describe the contested legacy of Brown as well as the way it is implicated in America's persistent uncertainties about race. In so doing they confront crucial questions about race, law and culture in contemporary America: What were the legal and cultural visions contained in Brown? How have those visions been articulated in other legal struggles? Why does the subject of race continue to haunt the American imagination? With original essays from contributors such as David Garrow, Lawrence Friedman, and Hazel Carby, this work will be an important perspective from which to view questions of race in modern America.

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Editorial Reviews

From the Publisher

"[This book's] rigorous but still snappy essays provide a multitude of fresh insights. Reading these reflections on Brown will cause any reader--legally trained or not--to think in new ways about thecrucial question of how much we want our law to mirror our complicated society."--Avaim Soifer, Dean and Professor of Law at Boston College Law School and author of Law and the Company We Keep

"In Brown v. Board of Education, the U.S. Supreme Court declared segregation by race unconstitutional, and thereby put an end to the long sorry history of national tolerance for America's official caste system. But the lessons it teaches, as the remarkable essays collected in Race, Law and Culture reveal, are cloudy and ambiguous, though still profoundly divisive.... Race, Law, and Culture contains some of the most powerful and original reassessments of Brown and its legacies to appear in recent years. By placing the Brown case both in the perspective of its own time and ours, the contributors help us understand what a great divide separates us from the vision of racial harmony of the 1950s."--Robert W. Gordon, Yale University

"...This book provides not only some excellent and rich essays, but a wonderful experiment in applying an essentially apolitical literary theory to an intensiely political concern."--Law and Politics Book Review

"...clear concise, and thoughtful essays that ought to be read by anyone with an interest in the book's subject."--Choice

Jennifer Hochschild
School desegregation meets postmodernist literary analysis. If this seems an unlikely coupling, it is. Like perhaps many unlikely couplings, most of the time it works, occasionally it soars, and once in a while it stumbles. To be less fanciful, this is a collection of nine essays, as well as an introduction by Sarat, that were originally presented at a 1994 conference on "BROWN at Forty" at Amherst College. As in most collections, these essays vary in range, depth, and quality. They also vary in their degree of self-conscious postmodernism, although with one exception they all present the image of a younger generation reflecting sympathetically but critically on the achievement of its almost mythical elders. Sarat sets the tone for the volume clearly in his serviceable introduction. "When it comes to race and racial issues these are strange times, confused and confusing times, for all Americans" (p. 3). Agreed, emphatically. "Is taking race into account to remedy the effects of past racial discrimination a form of racism or a step toward a more racially tolerant society? Can law lead us away from discrimination and racism? Or is it hostage to prevailing sentiments and opinions?" (p. 4) Excellent questions. He then moves to frame the volume as "put[ting] aside what I call an `instrumentalist' perspective and instead focus[sing] attention on questions of meaning and interpretation.... Instrumentalist assessments of BROWN are naturally inclined to see it as failing [I disagree, emphatically, but that is a discussion for another day]. But for the authors of this volume the significance of BROWN is that it made it possible to ask new things of law and to tell new stories about what it means to be African American. [Why not also white American?]" (p. 8). The essays are divided into three sections, on "BROWN and Its Legal Context," "Racial Discrimination and Antidiscrimination Law," and "Reading the `Realities' of Race." Within each section, the essays differ in the degree to which they focus singlemindedly on questions of meaning and interpretation. They also differ on the degree to which they take postmodern issues, broadly speaking, to be their central concern -- can one talk of "race" without being essentialist? Can universalistic ideals properly respect racial/ethnic difference? Can one care about material outcomes if one is focused on identity politics? Since the postmodernist framing of the volume is its most interesting and distinctive characteristic, the rest of my review will consider the essays according to a "pomo continuum" rather than in the order given in three sections of the book. Since ideal types are easier to describe than mixed cases, I begin at the two ends of the pomo continuum. I judge two essays to be outside of the postmodern framing. My colleague George Kateb has a characteristically closely-argued and controlledly passionate analysis of just "what is the harm of legal segregation of the races?" (p. 91). He mostly engages in a textual exegesis of Justice Harlan's dissent in PLESSY V. FERGUSON, which famously declared the Constitution to be color-blind. Harlan, and Kateb, worry about the implications of the fact that "confronted with such blatant disregard to their fundamental rights... blacks have no reason but a prudential one to accept the U.S. government as their own" (p. 99). Kateb (more than Harlan) also spells out the harms caused by segregation to the system as a whole and to the segregating white population. It is an elegant and powerful, if slightly precious, essay. David Garrow is the other author who resolutely avoids a postmodernist framing. His main concern is to demonstrate how BROWN began "the post-1954 Court's repudiation of historical intent and meaningful evidence of historical intent in its... application of... the Fourteenth Amendment." The essay spends little time on BROWN itself, moving quickly to the companion school desegregation cases, the two legislative reapportionment cases of the early 1960s, and the string of cases regulating sexual behavior ranging from birth control to abortion. It is a rather traditional doctrinal analysis, with extensive quotations from the decisions and no attention to the political or social context within which these decisions were reached and implemented. For my taste, therefore, it is a bit dry and arid. Two essays occupy the other pole of the pomo continuum. Peggy Cooper Davis begins the book by "performing interpretation" (p. 23). She argues that the plaintiffs' lawyers in BROWN "simultaneously played upon and subverted the image of the United States as a white polity" by alternately deferring to the white authority structure and seizing the authority to interpret the law on their own terms. "Their efforts transformed our Constitution, establishing it as an open text -- a text to be (real)ized in interpretive deliberation informed by previously neglected perspectives" (p. 24). The essay consists in a carefully disciplined micro-level analysis of the words used in oral arguments before the Court -- who used "politeness markers" and how often, who interrupted whom, who engaged in "metaframing," and so on. The result has a curiously inbred quality, in my view. But for those who find microanalyses of language use illuminating, this essay may be a model of how to find the universe in a grain of sand. Carol Greenhouse casts a wider net in her analysis of BROWN as "the definition of an iconic life story for a particular generation of African Americans" (p. 171). She analyzes how "federal powers lent their `signs' to public narratives of personal life" (p. 171) by moving rather quickly from BROWN to a reading of Darryl Pinckney's 1992 novel, HIGH COTTON, and an analysis of the 1991 confirmation hearings of then-Judge Clarence Thomas. As Greenhouse sees it, BROWN provided particular rhetorical strategies (mostly of "single-stranded `progress'" [p. 176]), set up a Bakhtinian tension between "federal power and contingent agency" (p. 177), and enacted a distinctive version of Homi Bhahba's concern about "the relationship between the nation and difference" (p. 182). In so doing, it shaped how African Americans of the civil rights generation saw themselves and their nation. We have now moved beyond that modernist vision, she argues, into a "postmodern state...whose promise of inclusiveness is affirmed as its past achievement" (p. 184). Stripped of its (to me irritating) linguistic pretensions, this argument about the new vision of the post-BROWN generation could be important as well as provocative. But I confess to having a hard time seeing the forest for all the rather florid trees. The careful reader will perhaps not be surprised when I assert that I found the five essays at the center of the pomo continuum to be the most rewarding. All five engage with postmodernist issues, but ultimately reject both the language and the politics of postmodernism in favor of nuanced and sensitive affirmations of one or another set of traditional values. Since they are in some ways similar to one another and since I lack space for full expositions, I will outline their arguments and urge readers of this review to pay close attention to their detailed analyses. Lawrence Friedman begins by asserting that "arguments based on text wildly exaggerate the impact of text. They assume that the language and the reasoning made a critical difference, as opposed to what the decision did, that is, its result, outcome, or decree, as the lay public understands and understood it" (p. 51). After throwing down that gauntlet, he then proceeds to do what "might seem odd" (p. 53) -- that is, examine the text of BROWN and other cases. It is a bit odd. But the sympathetic reader (of which I became one) can see his mission as showing how the style in which a decision is written cannot be interpreted apart from both the substantive context into which it is dropped and its influence in creating the context for the next case. In short, he analyzes style only to deconstruct any claim that it has independent import -- a pomo thing to do, perhaps, but not in the service of postmodernist goals. He concludes that we should focus our attention on the virtues and defects of the goals of BROWN itself -- assimilation, integration, racial equality -- and on what we must do now to "put an end to racism" (p. 65). Intentionally or not, Paul Gewirtz picks up Freidman's challenge by developing the range and nature of BROWN's impact on antidiscrimination law. Methodically but not ploddingly, he shows how BROWN affected the treatment of people classified by gender, age, disability, religion, and "other areas" (p. 115). After explaining why BROWN's antidiscrimination principle "triumphed," he balances his celebration of that triumph with some "darker" cautions. More controversially, the rest of the essay addresses the transformation of antidiscrimination law from formal equality to accommodating differences. Gewirtz's attentiveness to this topic shows his postmodernist sensibilities. But his conclusion that "it goes too far" to substitute the values of difference accommodation for the values of classical liberalism is, like Friedman's, a deep and important challenge to many scholars' views on racial and ethnic identity. All in all, a fine essay, which would be a terrific starting point for a vigorous classroom discussion. David Wilkins' essay on the moral responsibilities of black corporate lawyers is, like several others here, only tangentially related to BROWN V. BOARD. But it too shows the attentiveness to complexity, renunciation of ideological posturing, and clear writing that for me are necessary (if not sufficient) elements of a good essay. The essay celebrates Charles Hamilton Houston, using as its touchstone for contemporary political debates the question, "what would Houston say?" It worries about whether litigation is a viable strategy for racial change, whether black corporate lawyers can be asked to take on the burdens of fighting for racial justice, and how they will respond to that claim on their time and emotions. It shows its postmodernist sensibilities by addressing the issue of racial essentialism; can one make distinctive claims as blacks, on blacks, or for blacks without falling into the trap of reifying "blackness"? Wilkins concludes that one can, and that for all his cautions there is no excuse for anyone to ignore the example set by "Houston and Marshall's genius" (p. 157). It is an essay that is both touchingly reverent and stirringly insistent. Gary Peller's essay is the longest and most complicated of the book, and it is arguably overambitious. It ranges from white liberal guilt through the Thomas/Hill hearings, the culture of the pre-BROWN south, black nationalism, and school desegregation (among other things.) The theme that holds this panorama together is the same kind of ambivalence about the politics of difference that Gewirtz demonstrated. Peller argues that "the rejection of `color blindness' in favor of `multiculturalism' as the frame through which progressive whites understand racial justice is... a positive development"(p. 191). He is nevertheless concerned about the "link between the multicultural sensibility and the recent lack of progressive white activism around issues of race" (p. 191). White liberals, in short, had little difficulty forcing southerners to abandon a discredited racial hierarchy once they had the weapon of BROWN available to brandish. But black nationalism, the loss of faith in school desegregation and the discrediting of the idea of "cultural deprivation," and generalized wimpiness (my term, not Peller's) have led progressive whites into a posture of noninterference and deference that, ironically, echoes the views of market-oriented supporters of laissez-faire. Peller concludes by proposing a "`postmodern' attitude about cultural difference and nationalist integrity that seeks to retain a liberatory aspect of BROWN -- the social will to intervene, even forcefully and coercively, to transform oppressive social structures" (p. 192). That does not sound at all postmodernist to me, but never mind; if the label helps Peller to develop a program for actively promoting racial interaction around issues of justice and equality, I'll let him call it whatever he wants. An excellent, if too scattered, essay. Finally, Hazel Carby's brief and forceful essay will have no truck with postmodern sensitivities. Debates over multiculturalism are "a totally inadequate political response to the conditions of social, political, and economic devastation present in the daily lives of those who are poor and designated members of so-called minority populations in the United States" (p. 221). Good for her! It's high time someone pointed out that most contemporary debates about race in America mean less than nothing to a child dodging bullets in the Robert Taylor Homes (said your humble reviewer, humbly). Carby shows the influence of postmodernism in the fact that she sees the need to challenge syllabus writers and those who demonstrate an "obsessive engagement... with issues of identity politics" (p. 222) as much as right-wing "racists." But she sharply rejects the premises of most postmodernists, and concludes that multiculturalism is at best a panacea for black intellectuals and at worst a distraction from policies that are increasing racial and class segregation. It is to Sarat's credit that he ends the book with such a powerful challenge to the frame that he uses to set it up. Overall, this book provides not only some excellent and rich essays, but also a wonderful experiment in applying an essentially apolitical literary theory to an intensely political concern. Postmodernism undoubtedly takes some blows, but its advocates might point out that the most convincing critics set up their criticisms in postmodernist terms. So who, in the end, has won? Taken as a whole, this book not only makes us think afresh about old issues of racial desegregation. It could also be an extremely valuable vehicle for discussions in classes or seminars that have ostensibly nothing to do with race, law, or BROWN V. BOARD OF EDUCATION.
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Product Details

  • ISBN-13: 9780195106220
  • Publisher: Oxford University Press, USA
  • Publication date: 3/28/1997
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 256
  • Product dimensions: 6.06 (w) x 9.19 (h) x 0.73 (d)

Meet the Author

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science, and Chair of the Department of Law, Jurisprudence, and Social Thought at Amherst College. He has co-authored many previous works on law, including The Rhetoric of Law, Law's Violence, and Divorce Lawyers and Their Clients.

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Table of Contents

The Continuing Contest about Race in American Law and Culture: On Reading the Meaning of Brown 3
1 Performing Interpretation: A Legacy of Civil Rights Lawyering in Brown v. Board of Education 23
2 Brown in Context 49
3 From Brown to Casey: The U.S. Supreme Court and the Burdens of History 74
4 Brown and the Harm of Legal Segregation 91
5 The Triumph and Transformation of Antidiscrimination Law 110
6 Social Engineers or Corporate Tools? Brown v. Board of Education and the Conscience of the Black Corporate Bar 137
7 A Federal Life: Brown and the Nationalization of the Life Story 170
8 Cultural Imperialism, White Anxiety, and the Ideological Realignment of Brown 190
9 Can the Tactics of Cultural Integration Counter the Persistence of Political Apartheid? Or, The Multicultural Wars, Part Two 221
Index 229
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