Brown v. Board of Educ., 347 U. S. 483 (1954).
Kluger, Richard. Simple Justice 749 (New York: Vintage Books, 1977).
Id. Another example of this assessment is given by Charles Lawrence, who writes: “There is little doubt that the psychological impact of Brown was the spark that ignited the spontaneous combustion of boycotts, sit-ins, voter-registration, marches, and political organizations that resulted in much significant change for blacks.” Charles Lawrence,”‘One More River to Cross’–Recognizing the Real Injury in Brown: A Prerequisite to Shaping New Remedies,” in Derrick Bell, ed., Shades of Brown: New Perspectives on School Desegregation 49 (New York: Teachers College Press, 1980) (“Lawrence, ‘One More River’”).
For a different view of this period and the significance of the Brown decision, see Doug McAdam, Political Process and the Development of Black Insurgency, 1930–1970 (Chicago: University of Chicago Press, 1982).
Scheingold, Stuart, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven, Conn.: Yale University Press, 1974) (“Scheingold, The Politics of Rights”).
See, e. g., three articles discussing public interest law and legal services for the poor in a 1970 issue of the Yale Law Journal. Robert Borsage, et al., ”The New Public Interest Lawyers,” 79
Yale L. J.
1069 (1970); Wexler, Stephen, “Practicing Law for Poor People,” 79
Yale L. J.
1049 (1970); and Cahn, Edgar & Cahn, Jean, “Power to the People or the Profession?–The Public Interest in Public Interest law,” 79
Yale L. J.
1005 (1970). Also see Handler, Joel, Ellen Jane Hollingsworth, & Howard Erlanger, Lawyers and the Pursuit of Legal Rights (New York: Academic Press, 1978).
Throughout this essay I intentionally use the term “targeted by” as opposed to “victimized by” discrimination and oppression. Although somewhat unwieldy, 1 prefer this term because the label of “victim” carries with it stigmatic connotations of powerlessness. When using the label “victim,” the integrity of the individuals targeted by oppression or discrimination is impugned and their acts of resistance are not acknowledged.
In addition, I use the word “oppression” to mean the systematic, institutionalized, and socially condoned mistreatment of members of a group in society by individuals or by society as a whole through socially sanctioned norms. Discrimination and other forms of oppression are often seen as acts that are done to selected individuals by other individuals, thus ignoring the social and political context in which the acts occur. As Bumiller and others have pointed out, this is an inaccurate description of the manner in which discrimination occurs in our society and leads to a flawed view of the role discrimination plays. I am indebted to Ricky Sherover-Marcuse for these insights.
Scheingold, The Politics of Rights 5.
Olson bases much of the material in chapter two on Joel Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (New York: Academic Press, 1978) (“Handler, Social Movements”).
According to Handler, supra note 13, whether these problems actually develop is dependent on the following five variables: (1) the characteristics of social reform groups; (2) the distribution of costs and benefits resulting from social reform group activity; (3) the organizational structure of the lawyer participation–e. g., their funding base and hierarchy and technical and political skills–and its effect on lawyer-client relationships as well as lawyers' ability to sustain effective legal advocacy; (4) the nature and effectiveness of judicial remedies; and (5) the “bureaucratic contingency”–the nature of the bureaucratic agencies that reform groups must rely on actually to implement the desired social reform. Id. at 1–42.
See Olson, Mancur, The Logic of Collective Action (Cambridge: Harvard University Press, 1971); Wilson, James Q., Political Organizations (New York: Basic Books, 1973); and Handler, Social Movements 14.
See, e. g., Alinsky, Saul, Reveille for Radicals (New York: Vintage Books, 1969).
Handler, Quoting, Social Movements 25.
For a complete description of this study, see Miller, Richard & Sarat, Austin, “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” 15
Law & Soc'y Rev.
This method of research in political science was pioneered by Robert Lane, Political Ideology (New York: Free Press, 1962). Jennifer Hochschild uses similar methodology in her book, What's Fair? American Beliefs about Distributive Justice (Cambridge, Mass.: Harvard University Press, 1981).
Bumiller's criticism of the disjuncture between the law and people's real-life experiences is in the tradition of the Legal Realists of the 1930s. The Legal Realists held that law does not accurately describe social reality. Bumiller notes that the Realists attacked “legal formalism” on two grounds. First, they argued that “reality is a thing too complex for rules.” This branch of the Realist school argued that empiricism based in the emerging social sciences could bring life to legal thought that had formerly been dominated by legal abstractions. The second school argued that legal rules themselves were essentially impotent; that the rigid concepts of orthodox legal reasoning made no sense in the context of the complex analytical and psychological processes of individuals (at 23–24). See Fuller, Lon, “American Legal Realism,” 83
U. Pa. L. Rev.
443 (1934), and Jerome Frank, Law and the Modern Mind (New York: Bretano's, 1930).
Others have also noted this apparent acquiescence. Stuart Scheingold notes, for example, that “One of the primary obstacles to social change is the acquiescence of the oppressed. It is, at least at first glance, puzzling that people can learn to accept as normal that which the derached observer perceives as severe deprivation.” Scheingold, Politics of Rights at 132 (cited in note 4). Cloward and Piven also note that although the poor historically have gained more through mass defiance and disruption than through sanctioned modes of political activity, they usually accept the conditions of hardship in their lives and conform “to the institutional arrangements which enmesh them, which regulate the rewards and penalties of daily life, and which appear to be the only possible reality.” Frances Fox Piven & Richard Cloward, Poor People's Movements xi-xii (New York: Vintage, 1979) (“Piven & Cloward, Poor People's Movements”). Also see Moore, Barrington, Jr., Injustice: The Social Basis of Obedience and Revolt (White Plains, N. Y.: M. E. Sharpe, Inc., 1978) (“Moore, Injustice”).
There is also an instructive body of political science literature discussing the rationality of passivity. See, e. g., Samuel Popkin, The Rational Peasant (Berkeley: University of California Press, 1979); Scott, James, “A Solution to the ‘Voting Dilemma’ in Modern Democratic Theory,” 84
Ethics (1974); and Malcolm Feeley, Weapons of the Weak (New Haven, Conn.: Yale University Press, 1985).
Bumiller is not alone in her attention to this psychological phenomenon among the oppressed. She herself cites the work of the Martiniquean psychiatrist Frantz Fanon whose books Black Skin, White Masks (New York: Grove Press, 1967) and The Wretched of the Earth (New York: Grove Press, 1963) describe the lives of people living under colonial imperialism.
For a detailed compilation of works in this area, see Erica Sherover-Marcuse, Emancipation and Consciousness 4–5, nn. 5–6 (New York: Basil Blackwell, 1986). Sherover-Marcuse terms this phenomenon “internalized oppression,” noting that “an oppressive society recreates itself in its victims' hearts and minds in the form of behavior patterns and attitudinal habits which are installed and ‘nourished’ by the normal functioning of social intercourse itself…. [T]he effects of systematic mistreatment sediment themselves in the conscious (and subconscious) of the oppressed and… in the course of time these effects acquire both a ‘natural’ appearance and a life of their own. As a result, oppression is recycled; mistreatment is passed along by the victims themselves. Having internalized the norms and values of the dominant group, members of an oppressed group often mistreat each other in an unconscious imitation of their own suffering.”Id. at 4.
Also see Moore, Barrington, Injustice, especially ch. 2, “The Moral Authority of Suffering and Injustice.”
See also Gabel, Peter, “The Phenomenology of Rights–Consciousness and the Pact of the Withdrawn Selves,” 62
Tex. L. Rev.
1563, 1573, 1580–81 (19–). Discussing the alienation or disconnection that is generally experienced by all members of society, Gabel notes that the individual goes along with the fictional “reality” created by an oppressive society so as not to threaten the substitute connection that she uses to mollify her yearnings for an unalienated existence.
Moore, Barrington writes that in Nazi concentration camps, even trivial acts of “disobedience” were severely and often arbitrarily punished. Any prisoner who drew attention to himself endangered not only his own life, but those of his fellow prisoners. Survival in this setting was only possible by creating a social structure that accepted and utilized the oppressive norms and power structures of concentration camp life. Moore notes that even the social structures that arose among prisoners and might have formed the core of rebellion were perverted by the SS to further their purposes. Moore, Injustice, 64–77.
Genovese, Citing Eugene, Roll Jordon Roll 239 (New York: Vintage Books, 1976).
Bettleheim, Quoting Bruno, Surviving and Other Essays 62 (New York: Vintage Books, 1980).
Scheingold, The Politics of Rights 132–38 (cited in note 4).
It is not just targets of discrimination who are discouraged from invoking the protective power of the state because of the shameful connotations of such assistance. A central feature of most public assistance programs in this country is the stigma that attaches to their “beneficiaries.” Such a stigma is the primary reason that many people eligible for welfare assistance choose the “honorable” path of suffering through their desperate poverty in private. Frances Fox Piven & Richard Cloward, Regulating the Poor (New York: Vintage, 1971). Cloward and Piven argue that the state uses the theoretical availability of welfare assistance combined with its stigmatic and degrading requirements to control society's poor and to create downward pressure on wages and working conditions. See Scott Briar et al., in Jacobus tenBrock, ed., The Law of the Poor (San Francisco: Chandler Publishing Co., 1966), for a description of the negative attitude welfare recipients have about themselves and others receiving public assistance.
Part of what Bumiller is pointing out here is that when people do not have a powerful socially defined and sanctioned role to play in the political process, they are apt to see themselves as powerless, especially if they are predisposed to this self-perception. One example in the context of mass political movements is student protesters during the anti-Vietnam War movement. While the massive demonstrations against the war had a major impact on the political environment of the time, many who were involved in the protests were left with the feeling that the demonstrations did not accomplish anything. Describing her experiences at one anti-war demonstration, Leslie Cagan writes:
I recall after the very big mobilization in New York in the spring of 1967, at the end of the demonstration it started to rain. I ran to my uncle's car where I was supposed to meet him and my mother, and I got there first and just started to cry. When they got there they thought something had happened, that I had gotten beaten up by a policeman or something. I just cried and cried, and finally I calmed down and said that here we'd just had 400,000 people marching in the streets, and they are still dropping bombs in Vietnam. What are we doing?
Cagan, Leslie, “Something New Emerges,”in Dick Cluster, ed., They Should Have Served That Cup of Coffee 233–34 (Boston: South End Press, 1979) (“Cluster, They Should Have Served”).
War protesters could not see the reality of their power, in part because they were not given an official “role” in the legal decision-making process. Instead, they were put into a role of whining, shallow, complaining students or “kids” whose concerns were marginal and illegitimate. A sharp disjuncture was created between the social reality of their actual political power and the dominant ideology. For a good short discussion of the period, see Cluster, Dick, “It Did Make a Difference: The Anti-War Movement,”in id. at 131.
For a complementary explanation of the key causes of the civil rights movement, see Piven & Cloward, Poor People's Movements 181–263. They argue that the foundation for the civil rights movement was the transformation of the southern economy that made the semifeudalism of the southern economy obsolete, forced northern migration of many African-Americans, undermined the face-to-face system of racial domination, and finally, forced African-Americans into urban ghettos where political and communal organization was facilitated.
For example, civil rights leader Bernice Reagon, when asked how she became involved in the movement, listed the Brown decision as among the reasons: “Also I remember when the 1954 Supreme Court decision came, my father saying, ‘Now that's the supreme law of the land!’ Like, the Supreme Court, that's it. I remember him reading from it in the house, and it being a really high time.” Bernice Reagon, “The Borning Struggle,” in Cluster, They Should Have Served 12.
Traditionally law has been thought of as a mechanism to settle legal disputes between individual private parties. Thus, the standard structure of most lawsuits has been conceived of as bipolar, self-contained, initiated and controlled by the parties to the action, and having a remedy that flows directly from a right that has been violated by a specified defendant. Chayes, Abram, “The Role of the Judge in Public Law Litigation,” 89
Harv. L. Rev.
Although this is the state of equal protection doctrine in most of the modern cases relevant to Bumiller's discussion (e. g., in employment discrimination), an important and paradoxical exception has been the Court's decisions in school desegregation cases. Here, the Court has treated discrimination as an act that affects whole classes of people and is carried out by social institutions. The very fact that court-ordered desegregation plans affect whole school districts over periods of time far exceeding the tenure of the original plaintiffs is evidence of this. The Court, however, has limited the extent to which it was willing to carry this analytical framework (see, e. g., Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken l), where the Court refused to allow an interdistrict remedy on the theory that the relevant discrimination had only taken place within the confines of one district). Even more damaging, though, has been the Court's unexplained refusal to see discrimination in contexts other than education as implicating groups and institutions. See note 36, infra, and accompanying text.
Charles Lawrence has argued that Brown and its progeny have failed precisely because they have refused to recognize the institutional nature of segregation and racial discrimination. For example, he writes:
In Washington v. Davis, the fact that blacks did less well on a standardized test was a direct result of the fact that Washington, D. C. and environs had maintained a school system segregated by law until 1954… and had perpetuated that segregated system by using an only slightly more sophisticated system of classroom segregation through tracking until 1967…. Now the District of Columbia Police Department was using a method of selecting its employees that measured not what kind of police officers the applicants would make but measured instead the proficiency of their verbal skills.
Lawrence, “One More River” at 63 (footnotes omitted) (cited in note 3).
By focusing on the individual acts of discrimination, the Court has been stymied in its efforts to formulate effective remedies to racial discrimination. He argues that formal recognition of the systematic nature of racism in the United States and of the role the government has played in fostering this racism has far-reaching implications and would require much more vigorous and affirmative efforts than the current judiciary seems capable of. A parallel argument is made in Alan Freeman, “Anti-Discrimination Law,”in David Kairys, ed., The Politics of Law (New York: Pantheon, 1982) (“Freeman, ‘Anti-Discrimination Law’”). See note 47, infra.
In fact, this insistence on individualism is neither surprising nor new within the context of the American legal system. Individualism has long been a part of the cultural tradition in the United States. The American mythology and ethos of individualism have historically been effective in masking the systematic nature of oppression and have held our the promise of escaping oppressive conditions through individual achievement. In the legal context, requiring individuals to prove individual cases of discrimination has the obvious benefit of fractionalizing group power and depoliticizing and defusing potentially explosive issues of distributive justice. As long as unequal results are seen as the product of individual efforts and individual discrimination, the hard questions of how justly to redistribute social resources need never be confronted. For example, the conservative social theorist F. A. Hayek argues that the very concept of distributive justice is incomprehensible because it anthropomorphizes society, applying the same standards of justice to the joint actions of many people (society) as to those of an individual. “It is the sign of the immaturity of our minds that we have not yet outgrown these primitive concepts and still demand from an impersonal process which brings about a greater satisfaction of human desires than any deliberate human organization could achieve, that it conform to the moral precepts men have evolved for the guidance of their individual actions.” F. A. Hayek, 2 Law, Legislation and Liberty: The Mirage of Social Justice 63 (Chicago: Univ. Chicago Press, 1973).
Goode, Rizzo v., 423 U. S. 362 (1976).
One indication of how widespread the police misconduct was in Philadelphia during this period is the number of lawsuits brought by individuals alleging police brutality. From June 1976 to June 1977, 110 police brutality suits were filed. This was an increase of 70% over the previous year. According to one public interest law firm in Philadelphia, 70% of the men complaining of brutality were black or Puerto Rican. “Roundhouse Punches,”Newsweek, July 4, 1977, at 24.
Goode, Rizzo v., 423 U. S. at 371.
For a different assessment of the value of antidiscrimination laws, see Edelman, Lauren, “Organizational Governance and Due Process: the Expansion of Rights in the American Workplace” (unpub. diss. Stanford University, 1986). Edelman argues that the enactment of antidiscrimination laws sets into motion forms of organizational adjustment to the law from within large social institutions such as corporations. In this way, targets of discrimination may passively benefit from antidiscrimination laws without ever having to step forward to invoke them.
Examples abound here. Labor and community organizer Saul Alinsky was famous for his belief in the resources and wisdom of common people as well as his irreverence toward authority as the basis for political organizing. Saul Alinsky, Reveille for Radicals (cited in note 16), and Rules for Radicals (New York: Vintage, 1972). The African-American civil rights movement of the 1950s through 1970s started from the community and churches and then went on to adopt a black power ideology that gave a positive identity and meaning to being an African-American. See Stokely Carmichael and Charles Hamilton, Black Power: The Politics of Liberation in America (New York: Random House, 1967). The women's liberation movement of the 1970s widely used consciousness-raising groups to validate the experiences of women, to challenge the dominant society's depiction of womanhood, and to help establish new, human connections between women outside the framework of sexist role patterns. See Evans, Sara, Personal Politics (New York: Vintage Books, 1980). In South Africa, one of the main contributions of Steven Biko to the cause of black liberation was to help develop and articulate principles of the black consciousness movement. See Woods, Donald, Biko (New York: Paddington Press, 1978). The Brazilian educator Paulo Freire is known worldwide for his work assisting the oppressed in reclaiming and taking control of their social world as a step in achieving liberation. See Freire, Paulo, Pedagogy of the Oppressed (New York: Continuum, 1983). The Highlander Folk Center in New Market, Tennessee, founded by Miles Horton, also developed a national reputation for political-organizing workshops for the poor typified by Horton's statement: “You get the poor people together and the poor people teach each other.” Miriam Wolf-Wasserman & Linda Hutchinson, eds., Teaching Human Dignity 270 (Minneapolis: Education Exploration Center, 1978).
Rogin, Michael has written about dominant social ideologies, which he calls “countersubversive,” that have the effect of undermining political movements by creating negative cultural images of groups targeted by oppression. Michael Rogin, “Ronald Reagan”: The Movie, and Other Episodes in Political Demonology (Berkeley: University of California Press, 1987). “The subject of political repression must not be confined to the suppression of already legitimate political opposition. A history of American political suppression must attend to the repression of active, political dissent. But it must also direct attention to prepolitical institutional settings that have excluded some Americans from politics and influenced the terms on which others entered the political arena. An account of American political suppression must acknowledge the suppression of politics itself.”Id. at 44. Examples of classic literary works in this genre would include James Fenimore Cooper, The Last of the Mohicans (New York: Signet, 1980), and Thomas Dixon, The Clansman (Lexington, Kentucky: Univ. of Kentucky Press, 1970), better known in its film version, Birth of a Nation.
See also Boggs, Carl, Gramsci's Marxism (London: Pluto Press, 1976), for a discussion of the dominant society's use of ideological “hegemony” to control society's oppressed. There is “an entire system of values, attitudes, beliefs, morality, etc. that is in one way or another supportive of the established order and the class interests that dominate it…. To the extent that this prevailing consciousness is internalized by broad masses, it becomes part of the ‘common sense.’… [Hegemony] encourage[s] a sense of fatalism and passivity towards political action; and it justifie[s] every type of system-serving sacrifice and deprivation. In short, hegemony work[s] in many ways to induce the oppressed to accept or ‘consent’ to their own exploitation and daily misery.”Id. at 39–40.
See Jackins, Harvey, The Reclaiming of Power (Seattle: Rational Island Publishers, 1983), for a good discussion of dominant ideological structures, their manifestation as cultural and individual psychological “distress patterns,” and the process of “contradicting” such patterns.
See Althusser, Louis, Essays on Ideology (London: Verso, 1984).
Unfortunately, even should the individual choose to accede to the dominant vision, she will still be left in a weakened state. For having adopted a false picture of reality, she wastes energy upholding this false picture and pursuing life goals and strategies that, being based on falsehood, in the end will be unproductive.
Freeman, Alan writes:
[M]odern American law has adopted what I have called the perpetrator perspective. It purports to be a stance of society as a whole, or of a disinterested third-party gaze looking down on the problem of discrimination, and it simply does not care about results. Discrimination becomes the actions of individuals, the atomistic behavior of persons and institutions who have been abstracted out of actual society as part of a quest for villains. It is a notion of racial discrimination as something that is caused by individuals, or individual institutions, producing discrete results that can be identified as discrimination and thereafter neutralized. The emphasis is on the negative–on the behavior of the perpetrator and not the life situation of the victim.
In contrast, he notes, the “core idea of the victim perspective is that doing something about the problem of racial discrimination necessarily means results.” Freeman, “Anti-Discrimination Law” 98–99 (cited in note 36).
Bell, Derrick, “Foreword: The Civil Rights Chronicles,” 99
Harv. L. Rev.
4, 54–55 (1985).
See Piven & Cloward, Poor People's Movements (cited in note 22), for detailed discussions of the cooptation of movements of unemployed workers, industrial unions, African-Americans, and welfare recipients.
Moreover, it is not just the targets of oppression who lose hold of their dreams and visions. See, e. g., Studs Terkel, The Great Divide: Second Thoughts on the American Dream, (New York: Pantheon Books, 1988), where he argues that the dominant cultural theme in all walks of life in the United States during the 1980s has been popular loss of memory.
Alinsky recognizes this insight when he writes: “A revolutionary organizer must shake up the prevailing patterns of [people's] lives–agitate, create disenchantment and discontent with current values….” Alinsky, Rules for Radicals at xxi-xxii (cited in note 42).
Much as the Nazi SS was able to invade and corrupt the spontaneous social organization created by concentration camp prisoners. See note 25 supra.
Gabel, Peter & Harris, Paul, “Building Power and Breaking Images: Critical Legal Theory and the Practice of Law,” 11
N. Y. U. Rev. L. & Soc. Change
Id. Scheingold makes a similar argument, though he does not focus as specifically on drawing out the limitations and demystifying the very notion of legal rights that are conditioned upon the state's recognition. Scheingold, The Politics of Rights 131–38 (cited in note 4).
This does not mean that the lawyer does not utilize the full range of her expertise or continue to fulfill the responsibilities necessary for effective practice of the law. Rather, it entails the recognition that the role of the lawyer is a functional role that need not imply any hierarchy of power or status.
Gabel and Harris, 11 N. Y. U. Rev. L. & Soc. Change, at 376.
See note 34 supra. Also see Alan Freeman's discussion of the rise and decline of Supreme Court decisions expanding the meaning of civil rights during the eras of “uncertainty,”“contradiction,” and “rationalization” in Freeman, “Anti-Discrimination Law,” (cited in note 36).