Recasting the American Race Problem

REVIEW ESSAY Recasting the American Race Problem RETHINKING THE AMERICAN RACE PROBLEM. By Roy L. Brooks.t Berkeley: University of California Press, 1990. Pp. xiv, 256. $24.95 cloth. Reviewed by Richard Delgadot INTRODUCTION In Rethinking the American Race Problem, Roy L. Brooks addresses what many consider America's most intractable problem: race.1 In this well-researched volume, Brooks sets out to accomplish three tasks: to demonstrate the extent and seriousness of the American race problem (pp. 25-128), explain why it fails to galvanize the American people and their government (pp. 6-9), and offer some suggestions on what ought to be done (pp. 131-72). He is notably successful in the first undertaking, less so with the other two-better at showing the stark realities of the race problem than at showing why these realities persist or what should be done about them. Despite my reservations about the interpretive side of Brooks' book, I believe it makes a significant contribution to our understanding of the race problem. Part I of this review sets out Brooks' thesis. Part II deals with its interpretive deficiencies, showing how certain insights associated with the Critical Race Theory school of jurisprudence could have given Brooks' treatment even more depth and explanatory power. t Professor of Law, University of Minnesota School of Law. B.A. 1972, Connecticut; J.D. 1975, Yale. I Charles Inglis Thomson Professor of Law, University of Colorado. J.D. 1974, Boalt Hall School of Law, University of California, Berkeley. I. On the intractability of the American race problem, see D. BELL, AND WE ARE NOT SAVED (1987) [hereinafter D. BELL, NOT SAVED] (imaginative "Chronicles" illustrating the elusiveness of solutions to race problems); D. BELL, RACE, RACISM AND AMERICAN LAW (2d ed. 1980) [hereinafter D. BELL, RACE, RACISM] (showing perspectives of racial discrimination in schools, housing, employment, criminal justice, and other areas); Delgado, Derrick Bell and the Ideology of RacialReform: Will We Ever Be Saved? (Book Review), 97 YALE L.J. 923, 926 (1988) (Bell's "Chronicles" illustrate "that neither litigation, integrated education, emigration, separatism, self-help, nor armed insurrection... will undo American racism."). 1389 1390 CALIFORNIA LAW REVIEW [Vol. 79:1389 I THE AMERICAN RACE PROBLEM After the formal end of slavery, the official policy of the United States toward African-Americans was "separate but equal." Under this policy, laid down by the Supreme Court in Plessy v. Ferguson,2 American blacks had to be afforded the same public rights and privileges afforded whites, although not necessarily in the same physical settings. Under Plessy, separate schools, drinking fountains, and waiting rooms were permissible, so long as they were roughly equal to those provided whites.' In 1953, that policy changed. Brown v. Board of Education4 declared state-imposed segregation in public schools unconstitutional, a ruling that was soon broadened to include many other services.' Brown and later cases established the principle of formal equal opportunity (pp. 25-33) that remains in force today. That principle requires that government laws and policies remain scrupulously color-blind (pp. 29-33) (except, of course, where racial discrimination is found to have occurred, in which case the remedy may take race into account). Deviations from this norm of equal treatment are viewed with suspicion. In order to enforce formal equal opportunity, the courts developed the doctrine of strict scrutiny6 (pp. 51-66), under which classifications based on race are declared unconstitutional unless the government can show a compelling interest to support that classification. The second tenet of formal equal opportunity is institutional integration (pp. 4-5, 29-33). When a public institution, such as a school system, is found to have engaged in impermissible racial treatment, the remedy is to require it to take measures, such as busing, to reverse the segregation that treatment produced. These twin principles, color-blindness and institutional integration, are the mainstays of formal equal opportunity and the centerpieces of our national civil rights policy. They are also the principal puzzlement for Roy Brooks' book. Despite the legislative and judicial enforcement of formal equal opportunity, our national civil rights strategy has done little to ease blacks' predicament in the years since Brown. Compared to whites, blacks still lead 2. 163 U.S. 537 (1896) (upholding forced separation of races in railroad cars). 3. See D. BELL, RACE, RACISM, supra note 1, at 83-91; Delgado & Stefancic, Norms and Narratives: Can Judges Avoid Serious Moral Error?, 69 TEx. L. REv. 1929, 1937-38 (1991). 4. 347 U.S. 483 (1954). 5. For a description of the judicial aftermath of Brown, see D. BELL, RACE, RACISM, supra note 1, at 92-94. 6. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (structuring framework for strict scrutiny test). Brooks documents the harmful consequences of strict scrutiny at pp. 10, 83-84, 156-57, 165, and n.57. 1991] REVIEW ESSAY 1391 shorter lives, 7 have higher unemployment 8 and infant mortality rates,9 and have lower household incomes. 10 Moreover, the black-white gap on many such measures is growing, not narrowing." Has our civil rights strategy failed, or are other factors responsible for the continuing misery these statistics bespeak? Many have fastened on to the comforting answer that class differences are responsible for racial disparities. If blacks' predicament is simply the product of lack of jobs or other forms of cultural capital, it should ease in time; no special measures nor soulsearching would be in order. Our commitment to equal justice would be sound-the problem is not race or racism, but something else. The great contribution of Brooks is to cast serious doubt on this soothing interpretation. Class and culture-of-poverty millstones do, indeed, weigh blacks down. But race unfortunately retains its malevolent efficacy. To tease out the interlocking contributions of race and class Brooks subdivides his treatment of African-Americans, devoting separate chapters to the black poverty class (pp. 106-30), the black working class (pp. 67-105), and the black middle and upper classes (pp. 34-66). Marshalling an impressive array of statistics, many compiled by the federal government, Brooks shows that under virtually every index of welfare, health, and happiness, blacks fare worse than whites at the same income level. Middle-class black managers show more stress, illness, frustration, and early death than their white counterparts (pp. 39-51), and the same is true for members of the black poverty (pp. 109-27) and working classes (pp. 69-103). At every level, blacks experience more discrimination, stress, insecurity, school failure, and psychological and physical health problems than persons of the majority race (pp. 10-14). Brooks concludes that the onl (...truncated)