SCHOLARSHIP IN A DIVERSE LEGAL ACADEMY:
INCORPORATING OUTSIDERS’ PERSPECTIVES
Alex M. Johnson, Jr.
University of Virginia

Recent empirical data show that minorities, as well as women, are entering the legal academy in record numbers. Data generated by the American Bar Association indicate that the percentage of minorities employed as full-time law teachers has risen from 6.2 percent in 1985 to 11.8 percent in 1993.⁹⁶ Data culled from the AALS database on full-time faculty listed in the Directory of Law Teachers confirm this finding, demonstrating that the percentage of full-time minority faculty has increased from 10.0 to 12.2 percent from 1990 to 1994. Similarly, the percentage of women in the academy has increased from 16.0 percent to 28.9 percent during the same time period.⁹⁷

Notwithstanding this rather significant increase in the number of minority and women faculty in the last decade, serious problems remain in the integration of these faculty members into the academy. Although the interpretation of the data is subject to debate, an examination of the AALS database reveals that a disproportionate percentage of women and minorities are concentrated at the lowest ranks of the academy.⁹⁸ One factor which may continue to serve as an impediment to the complete integration of minorities and women into the academy is the role that scholarship plays in the hiring, recognition, and promotion of minority scholars.

This section is designed to explore the challenges to scholarly traditions and the role that scholarship should play in an academy whose membership is increasingly diversified along gendered, racial, and ethnic lines. To date, the academy has not fully internalized or addressed the extent to which its scholarly canons and traditions create challenges for individual minority scholars, and the academy as a whole. In other words, as minority scholars have entered the academy in increasing numbers, they have confronted unique challenges raised by the requirement of scholarly production and, in response to those challenges, have been the foremost advocates in reconsidering the normative basis upon which such scholarship is produced and evaluated.

This section, divided into five parts, analyzes the challenge facing the academy in incorporating these "other,"⁹⁹ "outsider"¹⁰⁰ scholars into the academy when the role of scholarship is examined. The first part focuses on the unique challenges faced by minority scholars upon entry and progression in the academy as it pertains to their scholarly production. The second part, in turn, focuses on the effect that these outsider scholars have had on the debate concerning the nature and worth of scholarship generally. The third part focuses specifically on the emergence of unique scholarship produced by diverse scholars in order to place their contributions and challenges to the academy in context. The fourth part describes the inescapable role conflict that continues to undermine outsider scholars because of ongoing uncertainty about the meaning of diversity in the academy. The fifth part is prescriptive, detailing broadly ways in which the academy can address "second-generation" diversity issues to minimize the harmful impact on diverse scholars. Although the five parts are presented as discrete and separate, there is obviously a synergistic effect that each part has on the other which should not be ignored or overlooked given the fluid parameters of this particular topic.¹⁰¹

I. The Challenge Of The Double Bind

The challenge facing the academy on the brink of a new millennium in which its membership is increasingly diverse is how to embrace that diversity without penalizing those who embody the very traits that make them diverse. This challenge is particularly severe when the issue is scholarship and scholarly production. The double bind faced by diverse scholars, women and minorities, as it pertains to scholarly production is quite simple to state, but difficult to remediate.

Simply put, these scholars face incredible burdens and impediments to the production of scholarship that their majoritarian colleagues never face. Given their still limited numbers, their high visibility because of their very difference, the manner in which they are perceived by colleagues and students, and their sense of fealty to a diverse student body and faculty, diverse scholars face time and, to a lesser degree, emotional constraints, not encountered by their majoritarian colleagues, that hinder production of a body of scholarship that meets the tenure standard. That is the first bind.

The second bind is more insidious and more difficult to quantify than the first; it stems from the fact that any scholarship produced by these diverse scholars is subject to special or exacting scrutiny simply because it is produced by diverse scholars. This second bind is exacerbated by the limited and meaningless "choices" or "options" available to diverse scholars when they attempt to produce scholarship. Briefly, these diverse scholars not only are burdened by an additional workload that forces them to be both counselor, peer advisor, and "regular" faculty member, but when they attempt to operate in the world of the "regular" faculty member, the very diversity for which they are sought and prized negates the value of their contribution.

As Professor Deborah Rhode pointed out recently:

Disproportionate committee assignments and other university service remain a problem, particularly for women [and men] of color and senior female faculty. Their small numbers and high visibility increase the demands on their time as well as the guilt involved in saying no. The desire for the ["perspective of the person of color" or the] "woman’s point of view" in panel discussions and decision-making bodies does, of course, reflect a welcome change from earlier decades. But the price of that progress is often borne by individuals who can least afford it--faculty whose scholarly credentials are subject to special scrutiny and whose office hours are scheduled from here to eternity.¹⁰²

Assuming that diverse scholars overcome the first double bind by finding the time and energy to produce scholarship, the second double bind that they face makes their diversity both a defining (positive) and marginalizing (negative) attribute. In essence, diverse scholars are faced with two choices when it comes to the production of scholarship. If they should seek to "fit in" with their majoritarian colleagues by producing traditional scholarship which makes no claim to privilege or insight based on the author’s status as a diverse scholar,¹⁰³ the diverse scholar runs the significant risk of having that contribution belittled or minimized because such, for want of a better phrase, traditional, aperspectival scholarship is not expected of nor desired from diverse scholars. The diverse scholar is vulnerable to a charge that diverse scholars are not hired to replicate the work of their more majoritarian colleagues.

Conversely, if diverse scholars produce non-traditional scholarship that draws on their unique perspectives, that work may be belittled or diminished due to its atypical nature or methodology. In other words, the enrichment provided by the diverse scholar’s perspective becomes a limitation on the scholarship’s value and worth because it departs from the dominant norms of neutrality, detachment, and objectivity.¹⁰⁴ From the diverse scholar’s perspective, the challenge created by the requirement of the production of scholarship is akin to a "heads I win, tails you lose" dilemma, even assuming the diverse scholar escapes the first bind and has sufficient time to engage in scholarly production.

II. The Challenge To The Academy

As scholars of color, women, gays and lesbians have trickled into the academy during the last score of years,¹⁰⁵ albeit at a snail’s pace, they collectively have had a transformative impact on the scholarship that is produced by the academy. Having been finally admitted, these previous outsiders have reluctantly become insiders, but insiders with unique and enlightening perspectives on the scholarly agenda undertaken by the academy.

In the last decade, however, the former outsiders have engaged the academy in debates that have challenged: (1) the basic, normative assumptions pursuant to which scholarship is produced (the shorthand reference is "the debate over the existence of voice");¹⁰⁶ (2) the methodological exposition of scholarship within the academy (once again, the shorthand reference is "the debate over the value and use of narrative");¹⁰⁷ and (3) the manner in which scholarship is evaluated (which is implicated in both the debates over the existence of voice and the use of narrative).¹⁰⁸ Although scholars of color and others (see, for example, the works of Professor Aleinikoff,¹⁰⁹ Freeman,¹¹⁰ and Peller¹¹¹) are producing a variety of scholarship that is correctly characterized as Critical Race Theory, the debate over the existence and validity of Critical Race Theory, in general, and the existence of the Voice of Color, in particular, was energized by the publication of an article by Professor Randall Kennedy, "Racial Critiques of Legal Academia",¹¹² which calls into question many, if not all, of the claims (e.g., racial distinctiveness, the existence of voice, the merit of employing an experiential approach) made by Critical Race Theorists.¹¹³ Like Critical Feminist Theory, Critical Race Theory has embraced narrative as an expositional format to explicate its salient principles. The experiential approach advocated by many Critical Race Theorists finds ultimate fruition through the use of first-person narratives that are subjective and personal. This use of narrative, like the use of the Voice of Color, has sparked a debate not only on the merits of such scholarship but the appropriate scholarly methodological format to be used within the academy. That issue implicates the larger question of how legal scholarship is measured and evaluated within the academy.

Other than the brief synopsis provided above, no attempt is made herein to revisit these specific debates, for such a task is beyond the scope of this Essay. Instead, this part is designed to illuminate one fact that has been lost in the series of debates over the existence of voice, the use of narrative, and the evaluative standards to be employed by the academy in assessing the worth of scholarly endeavors. Notwithstanding the existence of these heated and often vitriolic debates which challenge the core canons of legal academia, it is beyond cavil that these "outsiders," by challenging the traditional canons, have altered the legal landscape in subtle and not so subtle ways. Their very presence led to the debates, yet ironically the existence of the debates obscures, to some extent, the distance that the academy has traveled from an exclusively white, male, straight province to one that is beginning to, in the inestimable words of President Bill Clinton, "look like America."¹¹⁴ Relatedly, that slow transformation and the debates engendered by it have also obscured the impact that transformation has had on the methodology and perspective employed throughout the academy to address important legal issues.

Most importantly, then, these outsider scholars, whose presence diversified the racial, gender, and sexual orientation preferences of those within the academy, have used scholarship in a way that has had a tremendous impact on how scholarship is viewed within the academy. The outsiders contend that the academy is but a microcosm of society and that scholarship is the currency pursuant to which entitlements are awarded along race, gender, and class lines. By looking inward, to reform the academy, scholarship is viewed as a tool to remediate and eradicate racism, sexism, homophobia, and other ills harmful to society. In this setting, the heretofore hidden role that scholarship plays in maintaining illegitimate hierarchical relationships is exposed.

Relatedly, outsider scholarship is focused outwardly, on those at the bottom, as a tool for remediation of the ills that plague society. Outsider scholarship, that scholarship best defined as taking a perspectival approach that repudiates neutrality or objectivity as the baseline for scholarly discourse, confronts and challenges the traditional role of scholarship as analytical, linear, theoretical, and written solely for an audience of other like-minded and similarly contextualized scholars. Outsider scholarship expands both the purpose and audience of legal scholarship by addressing issues that implicate the practical and legal concerns of subordinated persons in society. Their scholarship is both polemical and biased in the positive sense of both of those terms in an academic world that prides itself on objectivity and neutrality; these traditional norms are used to mask value judgments made to distribute scarce resources in society.

Lastly, outsider scholarship is effective. Measuring the impact that outsider scholarship has had on the development of the law and the legal system is, at best, unscientific and subject to disputation. However, such scholarship undoubtedly has had a tremendous effect not only on what is taught but also how it is taught.¹¹⁵ As the twenty-first century approaches, it is clear that the face of the law has been substantially altered to incorporate and address the issues raised by outsider scholars. Academic diversity in the guise of Critical Race Theory and Critical Feminist Theory has had a profound effect on the legal academy in the last score of years. Not only has diversity affected which issues have been addressed, but it also has affected the form of what has been written. Debates over the existence of the "voice of color" and its worth and over the use of narrative as an expositional format by Critical Race Theory present unique challenges to the academy.

Diversity has been productive and challenging for the academy not only because of the attention it has drawn to previously undeveloped fields, but also because of its willingness to question some of the academy’s most cherished assumptions. Thus, for the first time in recent memory, explicit questions have been asked concerning the role of neutral principles in masking a perspective of white male hegemony that has gone unchallenged prior to the influx of diverse scholars. The adoption of an explicit perspective by scholars of color not only has caused a reexamination of issues from their point of view, but also has called into question the feasibility of a neutral or perspectiveless position, the normative standard that the academy had traditionally espoused.

Similarly, as outsider scholars adopted diverse and innovative scholarly techniques, they began to reexamine the evaluative norms applied to their research. The challenge to the myth of meritocracy has revealed fracture lines within the academy that had previously gone unnoticed. Relatedly, the role of objective truth in legal scholarship has come under attack by scholars of color who challenge the traditional canons which have supported the hegemony of white males.

These diverse scholars, then, raise new and intriguing questions and currently are struggling to find answers. These questions perhaps were not intentionally omitted when outsider scholars were absent from the academy. Such inquiries simply would not and could not be considered by a majoritarian academy in which sameness obscures a reality, but these issues must be addressed if law is to remain viable in this pluralistic, post-modern world. The real challenge for the academy raised by second-generation diversity, is whether majoritarian scholars will listen to these questions in good faith and in the spirit of cooperation or whether they will continue to adhere to a scholarly heuristic in which differences are minimized and homogeneity prized. It is simply not enough to admit these diverse scholars into the academy if their voices, their experiences, and their questions are not incorporated into the canons of the academy. Only when that incorporation fully occurs will the academy be able to fulfill its role as professoriate for the entire society.

III. The Emergence of Non-Traditional Scholarship

The focal point of scholarship produced by the increasing diversity of the academy is the emergence and development of Critical Race and Critical Feminist Theory, respectively. The primary although not exclusive focus herein is on the development of Critical Race rather than Critical Feminist Theory in that Critical Race Theory, as noted and discussed below, represents the most recent addition to legal scholarship and, more importantly, the challenges presented by this body of scholarship incorporate and build upon, to a large extent, the challenges presented by the development of Critical Feminist Theory. Moreover, as the paper addresses what second-generation diversity means to the academy, authors and article titles will be acknowledged and addressed because these authors, whose works do not yet appear in the leading casebooks and hornbooks, need to be recognized and acknowledged for the contributions they have made.

This recognition, however, comes with a caveat: no attempt is made herein to privilege Critical Race and Feminist Theories as the exclusive province of diverse scholars or as the only "meaningful" scholarship produced by diverse scholars. Nothing could be further from the truth. Diverse scholars do produce successful policy-oriented and doctrinal scholarship (traditional legal scholarship) that enriches the academy and that body of work is not reflected herein. Consequently, the analysis of critical theory that follows should be taken for what it is: one example of scholarship produced by diverse scholars, but not necessarily the only or predominant scholarship produced by diverse scholars.

A. The Genesis of Critical Race Theory

As with many intellectual disciplines, Critical Race Theory did not develop in a vacuum. Although closely aligned with the Critical Legal Studies movement and the Critical Feminist Theory movement (discussed infra), Critical Race Theory developed, in part, in opposition to many of the tenets of Critical Legal Studies. In essence, Critical Race Theory emerged as a challenge to Critical Legal Studies, offering an alternative approach to issues that disproportionately impact minorities and minority scholars.¹¹⁶

In an early article "The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?,"¹¹⁷ Professor Richard Delgado, one of the founding scholars of Critical Race Theory, presents a critique of Critical Legal Studies that is illuminating for what it reveals about the origins of Critical Race Theory. Essentially, Professor Delgado presents a conflicting picture of Critical Legal Studies when viewed through the lens of minority legal scholars. On the one hand, Critical Legal Studies is applauded for its attack on "neutral" American legal and social institutions. On the other hand, it is condemned by Professor Delgado for its advocacy of informality and its utopian vision which "ignores the need for structure in containing and eliminating racism."

What is important is the identification of similarities that are contained within both "Critical" movements (and, later, the similarities with the third "Critical" movement, Critical Feminist Theory) that infuse both movements as challenges to traditional legal orthodoxy or jurisprudence. More importantly, by demonstrating the shortcomings inherent in Critical Legal Studies when addressing issues that are important to minorities, Professor Delgado, unintentionally perhaps, opened the door to a flood of scholarship that although condemnatory of Critical Legal Studies, is revelatory of the need for a new brand of scholarship whose primary or sole focus is on the needs of minorities and minority scholars.

Continuing in the same vein, Professor Mari Matsuda, yet another principal architect of Critical Race Theory, in her article, "Looking to the Bottom: Critical Legal Studies and Reparations,"¹¹⁸ presents a critique of the shortcomings of Critical Legal Studies when viewed from the perspectives of minorities and minority scholars. More importantly, Professor Matsuda presents a perspectival approach when she seeks to "look to the bottom" for normative and other insights to help the plight of minorities. That perspectival approach, which rejects claims of objectivity and neutrality, has become a central tenet of Critical Race Theory.

Thus, understanding what is meant and sought to be accomplished by "looking to the bottom" becomes a key responsibility for anyone interested in attaining a clear understanding of the central canons of Critical Race Theory. Professor Matsuda’s article challenges Critical Legal Studies and traditional legal scholarship to incorporate the experiential approach she advocates as an important part of effective legal scholarship. Many of the claims made by those who employ narrative in legal scholarship are addressed in Professor Matsuda’s pioneering article.

In a seminal article, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,"¹¹⁹ Professor Kimberle Crenshaw, establishes herself as an exceptional scholar and Critical Race Theory as viable scholarship. Professor Crenshaw draws upon theories and insights provided by Critical Legal Studies to demonstrate the indeterminacy of civil rights law. Instead of demonstrating its weaknesses, Professor Crenshaw uses salient features of Critical Legal Studies to advance her primary points. Professor Crenshaw addresses two primary themes: First, she establishes the societal creation and maintenance of a collective black consciousness or identity that is differentiated from that fostered by majoritarian culture. This is an important claim that repeats itself throughout the literature produced by Critical Race Theorists.

Second, and perhaps more importantly, Professor Crenshaw addresses two models to assess the adequacy or inadequacy of changes in American society as it deals with tough questions on race or race relations in American society. Professor Crenshaw contrasts the equality of process model (which can be traced to process theorists such as Professor Herbert Wechsler¹²⁰) and the equality of result model which she advocates as the appropriate metric to gauge racial progress in this society.

Professor Derrick Bell, whose pioneering narrative work in And We Are Not Saved¹²¹ demonstrates his interest-convergence thesis,¹²² presents a more troubling challenge to the academy. "The Chronicle of Celestial Curia" raises the interesting question of whether meaningful, positive racial change--defined as the elimination of the subordinated position of persons of color--can be accomplished without explicit violence. Professor Bell’s scholarship directly confronts the incrementalism fostered by use of the legal system to effectuate change in society.

Professor Charles Lawrence is the fifth scholar whose pioneering work is recognized as establishing and creating the scholarship that has come to be known as Critical Race Theory. In "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,"¹²³ Professor Lawrence turns to psychology to construct a theory in which unconscious racism must be reckoned with from a societal perspective. Professor Lawrence presents a compelling theory that although overt racism is often the focus of race-relations law, it is the unconscious, everyday racism that is the most damaging to the position of persons of color or subordinated persons. Like Professor Bell, Professor Lawrence illuminates traditional law’s inadequacy to deal with a societal problem that is ingrained in the nation’s psyche.

Finally, two related articles by Professor Richard Delgado, "The Imperial Scholar: Reflections on a Review of Civil Rights Literature,"¹²⁴ and "The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later,"¹²⁵ challenge directly majoritarian legal scholars and their treatment of minority scholars’ work in their citation and other scholarly practices. These two articles are crucial to an understanding of the depth of knowledge presented by Critical Race Theory and the challenge it represents to the academy because they signal a new direction in Critical Race Theory: the inward turn in analysis. Critical Race Theory has a dualistic focus in its scholarship and presentation. On the one hand, much of the scholarship that is characterized as Critical Race Theory focuses on what can be done to improve the position of persons of color or subordinated persons in society. This is characterized as "outward looking" scholarship.

On the other hand, much of the scholarship that is accurately characterized as Critical Race Theory, beginning with Professor Delgado’s first "Imperial Scholar" article,¹²⁶ focuses on the plight of and alleged disparate treatment of minority scholars within the legal academy. This "inward turn" in scholarly analysis could and should be viewed as representing a microcosm of the issues and treatment of minorities or persons of color in the larger society. In other words, by analyzing how race and racism affect and infect the treatment of scholars of color in an academic discipline that is known for its progressive liberalism, the potency of racism and its impact on our society are exposed.¹²⁷

This inward turn in scholarly analysis has had a tremendous, some would say foundational, impact on legal scholarship in that Critical Race and Critical Feminist Theories have exposed the fundamental weakness of traditional scholarship by questioning the primary tenets of legal scholarship, that is, the norms of perspectivelessness, neutrality, and incrementalism, upon which traditional scholarship is based. Indeed, Critical Race and Critical Feminist Theorists continually question the efficacy of working through the legal system to foster change and, in so doing, they reject neutrality and perspectivelessness in favor of an explicitly positioned perspective. It is to that perspective that the analysis turns.

B. The Debate Over the Voice of Color

The debate over the emergence of Critical Race Theory and the existence of the voice of color was energized by the publication of an article by Professor Randall Kennedy, "Racial Critiques of Legal Academia,"¹²⁸ which calls into question many, if not all, of the claims about racial distinctiveness and alternative methodologies made by Critical Race Theory. Professor Kennedy’s article was threatening and powerful precisely because it was written by a scholar of color with previously impeccable liberal credentials (see, for example, Professor Kennedy’s vigorous defense of affirmative action) who many would assume would agree with the basic jurisprudential claims made by Critical Race Theorists. Many contended that Professor Kennedy, as a scholar of color, was able to make public many of the criticisms of Critical Race Theory that had remained private because majoritarian scholars were afraid to voice their complaints for fear of being labeled "politically incorrect" at best and racist at worst.

The responses to Professor Kennedy’s article by those within and without the Critical Race Theory movement illuminate the efficacy of this emerging scholarship and the challenge the academy faces in incorporating it into the canon when it is premised not only on a rejection of neutral principles but also on an explicit perspective that acknowledges the identity and salient personal characteristics of the author. For example, in my first foray into Critical Race Theory in "Racial Critiques of Legal Academia: A Reply in Favor of Context,"¹²⁹ I adopted an outsider perspective, albeit an outsider who is a scholar of color, to claim that scholars of color can speak in a unique voice and be heard both by other scholars of color and majoritarian scholars. At base, the debate over the existence of voice is part of a larger debate (discussed below) over the evaluative standards employed by the academy to assess the merits of scholarly work.

The crucial questions presented are: whether the voice of color exists; if it does, who possesses it; and, finally, how it is successfully articulated. I attempt to answer these questions and to bring closure to the debate over the existence and articulation of the voice of color in the article, "The New Voice of Color."¹³⁰ Furthermore, I present an interpretive heuristic, based in part on hermeneutics, pursuant to which I claim that the voice of color is intentionally expressed by scholars of color and heard by majoritarian and other scholars who are willing to listen to and hear its call.

The debate over the existence of the voice of color and the evaluative standards that should be applied to judge it as well as other traditional scholarship has led scholars to reexamine the role of merit in evaluating scholarship. Thus, Professor Stephen Carter in his article, "Academic Tenure and ‘White Male Standards’: Some Lessons from the Patent Law,"¹³¹ proceeds to weigh in with his views on the existence and worth of scholarship prepared by Critical Race Theorists, including that which claims to speak in voice or narrative. More importantly, Professor Carter presents an evaluative standard to judge meritorious scholarship that is based largely on lessons learned from patent law.

On the other hand, Professor Jerome Culp in his article, "You Can Take Them to Water But You Can’t Make Them Drink: Black Legal Scholarship and White Legal Scholars,"¹³² presents a spirited defense of Critical Race Theory and the existence of the voice of color that is critical of scholars and the academy for essentially being too conservative in their claims with respect to the existence, use, and validity of Critical Race Theory and the voice of color. Instead, Professor Culp takes a radical approach and claims that the voice of color is articulated by any minority scholar whenever he or she speaks irrespective of topic and intent and that that voice has power and worth simply because it is spoken by a scholar of color. Furthermore, Professor Culp contends that the rest of the academy must adjust to and address the claims made by minority scholars employing the voice of color rather than scholars of color modifying their scholarship to make it more accessible to majoritarian scholars.

Turning to the works prepared by scholars of color that neither attempt to define voice nor defend its articulation and the evaluative standard to be employed to determine its merit, a non-scientific representative cross-sample of such scholarship reveals a rich and growing body of literature that has the potential to transform both the canon of legal scholarship and the legal academy. Thus, an article prepared by Professor Robin Barnes, "Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship,"¹³³ focuses on the duality inherent in the works of Critical Race Theorists and traces it to the pioneering work of W.E.B. DuBois.

In a postmodernist twist, Professor John Calmore’s article, "Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World,"¹³⁴ explores the origin and development of African-American culture through its exposition in jazz and asks whether legal scholarship is undergoing the same sort of evolutionary process as music. Particular attention, then, must be paid to the claims that Professor Calmore makes that African-Americans should reject diluting their culture and their music with majoritarian music or norms. That debate, over integration as assimilation and the advocacy of nationalism as a viable strategy for African-Americans, is crucial for Critical Race Theorists and the future of diversity in not only the academy but society as well.

Professor Neil Gotanda’s more traditional article, "A Critique of ‘Our Constitution is Color Blind,’"¹³⁵ examines and articulates how courts and society have used the notion of colorblindness to maintain the hegemonic position of whites. And, for the first time, Professor Gotanda confronts a question implicit in much of what we have discussed: that is, how race is defined or constructed in American society.

In a recent article, "Destabilizing Racial Classifications Based on Insights Gleaned from Trademark Law,"¹³⁶ I continue in the same vein and attempt to explain the continued existence of a dichotomous racial classification scheme in the United States. I maintain that this phenomenon can be explained in part by the concept of "whiteness" as a property right.¹³⁷ However, the fact that "whiteness" is protected as a valuable property right in this society does not explain why other racial classifications have not developed to identify those who are products of mixed-race unions.¹³⁸

I argue that the wholesale rejection of multi-racial categories in American society can be explained by the fact that racial classifications function most effectively as a vehicle for discrimination and empowerment when they are manipulated to maintain a duality that has the effect of entrenching the notion of "otherness." This notion of otherness is established by using a baseline of white racial purity. As a result, I contend that race and racism in American society will never be reduced or eliminated until the manner in which race is categorized is radically altered to take into account the products of mixed-union (miscegenetic) mating in a way that recognizes their unique ethnicity and heritage.

Finally, Professor Anthony Cook’s article, "Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr.,"¹³⁹ also with a postmodernist bent, focuses on the works of Dr. Martin Luther King, Jr. and attempts to demonstrate how Dr. King’s works and practices can enrich the vision and contributions of Critical Race Theorists. Particular attention is paid to the twin doctrines of "reconstructive theorizing" and "experiential deconstruction" as appropriate vehicles to attain the goals sought by Critical Race Theorists.

C. The Debate Over the Use and Worth of Narrative

Similarly, the debate over the existence and use of narrative in legal scholarship has particular relevance for Critical Legal Theorists. Although many contend that lawyering and lawsuits entail nothing more than telling stories and persuading the trier of fact that your version of the events or story is more compelling than your opponent’s, the use of narrative outside of the case methodology, in legal scholarship in particular, has always been problematic. Thus, although the law and literature movement as well as noted scholars like James Boyd¹⁴⁰ have employed narrative as a methodological vehicle to explore relevant legal issues, narrative has never been accepted as equal to the impersonal, objective methodological scholarly form that is represented by the traditional law review article.

Critical Race Theory, like Critical Feminist Theory, has embraced narrative as an expositional format to explicate its salient principles. The experiential approach advocated by many Critical Race Theorists finds ultimate fruition through the use of first-person narratives that are subjective and personal. This reliance on narrative, like the use of voice has sparked a debate not only on the merits of Critical Race Theorists’ scholarship, but also on the appropriate scholarly methodological format to be used within the academy. That issue raises the larger issue of how legal scholarship is measured and evaluated within the academy.

The articles discussed below frame the discussion of normative standards of merit as applied to Critical Race Theory and what, if anything, narrative as an expositional framework adds to or subtracts from this analysis. Thus in "Foreword: Telling Stories,"¹⁴¹ Professor Kim Scheppele advocates the use of storytelling (which may or may not be synonymous with narrative) as a counter-hegemonic device in which the different perspectives of subordinate persons are illuminated.

Attention quickly shifts to Professor Patricia Williams renowned narrative in "The Obliging Shell: An Informal Essay on Formal Equal Opportunity,"¹⁴² that demonstrates the intersection of narrative and Critical Race Theory. By employing the metaphor of a sausage machine and relating the tale of a campus incident which concerns whether students believe that Beethoven was a mulatto, Professor Williams demonstrates the power of narrative and the unique issues it can generate if successfully employed in the hands of a skillful practitioner such as herself. Her pioneering work also raises the foundational question of whether such work is scholarship or literature.

Although Professor Williams employed narrative in a traditional framework--i.e., it is employed in a law review and is used to supplement traditional legal analysis-- Professor Williams book, The Alchemy of Race and Rights,¹⁴³ represents an example of "pure narrative" unsupplemented by legal analysis. In telling the infamous tale that has come to be known as "The Benetton Story," the academy must decide whether that tale is indeed legal scholarship. Moreover, assuming it is legal scholarship, how should it be evaluated? These are a few of the tough questions raised by the use of narrative in legal scholarship.

Professor Richard Delgado’s article, "Story Telling for Oppositionists and Others: A Plea for Narrative,"¹⁴⁴ advocates the use of narrative in legal scholarship, detailing all of the alleged benefits that flow from its use. As one of the leaders of not only Critical Race Theory but the use of narrative as well, Professor Delgado is uniquely placed to extol the virtues associated with the use of narrative by Critical Race Theorists.

Similarly in a moving article by Professor Charles Lawrence, "The Word and the River: Pedagogy As Scholarship as Struggle,"¹⁴⁵ a portion of which is excerpted in this volume, Professor Lawrence employs narrative to engage the reader in his attempt to use scholarship as a vehicle to liberate African-Americans from their subordinated position. In doing so, Professor Lawrence takes the position that the subjective, positioned perspective of the scholar of color or Critical Race Theorist must be recognized and given effect.

Like voice, the use of narrative by scholars of color, critical feminists, and gays¹⁴⁶ has not gone unnoticed or unchallenged by scholars who question both the use of this novel expositional format and its worth as legal scholarship. Thus, an article co-authored by Professors Farber and Sherry, "Telling Stories Out of School: An Essay on Legal Narratives,"¹⁴⁷ is reminiscent of Professor Randall Kennedy’s article questioning the utility of Critical Race Theory.¹⁴⁸ However, Professors Farber and Sherry focus their critique more narrowly. Although they are generally critical of Critical Race Theory and its content or lack thereof, their primary focus is on what they perceive to be the weaknesses inherent in narrative as a scholarly methodological framework when it is not supplemented by what they characterize as legal reasoning. This attack on narrative and Critical Race Theory is notable in that it represents, for the first time in any significant manner, an attack on these two doctrines by majoritarian scholars.

The response to the issues raised by Professors Farber and Sherry was swift and extensive. Professor Richard Delgado’s response to the Farber and Sherry article contained in his article, "The Inward Turn in Outsider Jurisprudence,"¹⁴⁹ engages the debate over the appropriate evaluative paradigm to be employed by the academy to judge the merit of scholarship. Professor Jerome Culp’s more radical approach in "You Can Take Them to Water But You Can’t Make Them Drink: Black Legal Scholarship and White Legal Scholars,"¹⁵⁰ is to simply put the onus on majoritarian scholars to read carefully and hear the claims made by Critical Race Theorists speaking in narrative or non-narrative form. Implicit in Professor Culp’s assessment of the worth of such scholarship is its unfair (some might say racist) treatment by majoritarian scholars who are either unable or unwilling to take that scholarship as seriously as scholarship prepared by majoritarian scholars. Indeed, Professor Culp differentiates between scholarship authored by minority scholars and divides that into two disparate types of scholarship: that which is aimed at and read by majoritarian scholars and that (like Critical Race Theory) which is ignored or marginalized by majoritarian scholars due to its critical components.

In my article, "Defending the Use of Narrative and Giving Content to the Voice of Color: Rejecting the Imposition of Process Theory,"¹⁵¹ I argue that Professors Farber and Sherry’s critique of narrative and Critical Race Theory leads quite naturally to the imposition of a "correct" methodological framework for legal scholarship that exalts the process by which scholarship is prepared over the value of its content. I contend that Farber and Sherry have conflated the process by which scholarship is produced with its content and thus impermissibly conclude that meaningful, meritorious scholarship can be produced through only one "traditional" objectified process. In addition, I attempt to respond to the broader challenge inherent in the Farber and Sherry article by defining with specificity the distinctiveness inherent in Critical Race Theory and the voice of color.

D. Revisiting Integrationism From the Perspective of Critical Race Theory

Thus far, much of what has been presented has dealt with the intent, format, and alleged effect of Critical Race Theory. There has been little attention paid to what, if any impact, diversity has had on the development of legal doctrines analyzed and employed by the academy. Lastly, then, a specific legal topic, the issue of "integrationism," is analyzed to demonstrate the impact that diversity in the legal academy has had on the analysis of these issues and the challenges that remain in resolving them.

What is interesting about the focus on integrationism is that it represents an appropriate place to pause and reconsider the benefits and challenges produced by Critical Race Theory because it requires the evaluator to come full circle to reconsider a case, Brown v. Board of Education,¹⁵² which many contend signals the end of one phase of Critical Race Theory (the legal strategy to attain integrationism as a judicial philosophy) and the beginning of the modern era of Critical Race Theory. A reexamination of Brown is both profitable and necessary given the developments that have occurred in the forty years since it was rendered. Brown represents the first stage in the development of the intellectual movement that has evolved into what we characterize today as Critical Race Theory. Brown represents a school of thought within Critical Race Theory that has elsewhere been characterized as "no-difference" or "sameness."¹⁵³ In other words, the late Thurgood Marshall and Robert Carter, individuals I characterize as the first Critical Race Theorists since their focus, like contemporary Critical Race Theorists, is on the elimination of legalized subordination and oppression of persons of color, believed that the appropriate strategy to improve the plight of persons of color and achieve equality was to demonstrate that there was no difference between whites and African-Americans in biological, sociological, intellectual, or whatever other terms are employed to gauge difference.

This belief led these strategists to employ a no-difference or sameness approach that logically culminated in the decision in Brown, which endorsed integrationism as the path to equality. Current Critical Race Theory scholarship on Brown analyzes whether that decision was a correct one when viewed with hindsight; this reassessment leads to a consideration of alternative strategies to achieve racial progress in light of Brown’s perceived failure to achieve meaningful changes in American society.

Thus, in "A Reassessment of Brown v. Board of Education,"¹⁵⁴ Judge Robert Carter, one of the principal architects of integrationism as a strategy and a key advocate of the "successful" decision in Brown, frankly reassesses the Brown strategy and the events leading up to it to explain why this approach was correct given the historical context within which the decision was made. Judge Carter’s article, however, goes beyond historiography and assesses the efficacy of integrationism in today’s society given the current state of race relations.

Professor Derrick Bell’s contribution in this area in Shades of Brown: New Perspectives in School Desegregation,¹⁵⁵ focuses on his "interest-convergence" principle, which asserts that whites will act to better the position of African-Americans if, and only if, this action has a concomitantly greater benefit for whites. Professor Bell attempts to apply this principle to Brown by demonstrating that the elimination of de jure segregation was more beneficial to whites than African-Americans. The question raised is whether integrationism, given Professor Bell’s thesis, is viable in society today.

Professor Kevin Brown analyzes the Supreme Court’s decisions on integration of public schools in his article, "Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?,"¹⁵⁶ and comes to the conclusion that the decisions were based on a view that African-Americans were inferior to whites and that the remedy provided by the Court--that is, integration--is premised on the same fallacious reasoning because it assumes that African-American inferiority will be overcome through interaction with allegedly superior whites. Thus, Professor Brown concludes that the strategy that led to Brown is ultimately more harmful than helpful to African-Americans because it "replicates the disease" that led to the need for integration in the first instance.

Professor Drew Days’ article, "Brown Blues: Rethinking the Integrative Ideal,"¹⁵⁷ asks the much larger question of whether integrationism is a failed strategy to improve the position of African-Americans in American society. Professor Days’ article raises the intriguing question of whether separatism in the educational system, perhaps through the use of African-American academies or schools, is the appropriate philosophy to pursue in light of the failure of Brown.

This analysis of integrationism illustrates the third philosophical strand of Critical Race Theory: nationalism. As indicated previously, the first strand of Critical Race Theory is represented by the Brown decision and the adoption of a "sameness" or "no-difference" strategy in which integrationism was adopted as the primary vehicle to achieve racial equality. This strand gave way to the second development or strand of Critical Race Theory, the assertion of a different voice that has already been the subject of much discussion.¹⁵⁸ According to this strand of Critical Race Theory, race as socially constructed in this society has caused material differences in the voice of minorities when compared to whites; only when those differences are recognized can true racial progress be attained.

The third philosophical strand, nationalism or separatism, is a logical outgrowth of the second strand and posits that true equality will be attained--that is, true integration--only when African-Americans and other subordinated persons are able to negotiate and interact with the dominant majority from a position of strength. Theorists who advocate nationalism or separatism view current attempts at integration as the equivalent of assimilation because they require African-Americans and other subordinated persons to suppress their voice and their communal norms, their nomos, in exchange for the alien voice and norms of white culture. Indeed, nationalists or separatists contend, like Critical Feminist Theorists, that African-Americans will never be able to experience true equality until the yoke of white oppression is removed, a liberation that cannot be accomplished in a society premised on hierarchy and the exploitation of subordinated peoples in society.

I critically analyze the doctrine of integrationism as espoused in Brown and its progeny, United States. v. Fordice,¹⁵⁹ in my article, "Bid Whist, Tonk and U.S. v. Fordice: Why Integrationism Fails African-Americans Again,"¹⁶⁰ and contend that this strategy is doomed to fail because it does not respect the differences that have developed within the African-American community during the period in which de jure and, subsequently, de facto segregation were pervasive. Indeed, I argue that true equality will only be achieved by recognizing the ways in which race, although socially constructed, continues to affect the development of our society. In sum, I claim that race continues to matter and that the only way eventually to get beyond race is to continue to take it into account by recognizing that biological race (if such a thing ever existed) has been superseded by ethnic identification. Moreover, that ethnic identification has produced unique cultures that foreclose a philosophy of integrationism predicated on cultural assimilation.

IV. Uncertainty, Invisibility, And Isolation: The Products Of The Double Challenges

In this essay, I have explained in depth the dilemmas faced by those who choose to embrace their diversity in defining their roles as legal scholars. For outsider scholars, there is no easy way to sidestep the controversy that I have described. Because of both who they are and what they are saying in their scholarship about the academy and the role that meritocracy plays within that academy, diverse scholars face uncertainty, potential isolation, and lastly, the prospect of invisibility. Their tenuous position is attributable to their ambivalent relationship to the academy.

The choice to highlight an outsider perspective is simply one response to a double bind that all newcomers to the legal academy face. Because there is no consensus within the academy on what diversity means, what role diversity should play in the academy, what diversity should be accomplishing within the academy, and what diverse scholars should be doing, uncertainty abounds with respect to the role that these scholars should play. Diverse scholars face an impossible choice upon entry into the academy, one that cannot be made correctly or rationally because of the ambiguities surrounding their role. Simply put, these scholars have to decide on two divergent options that are incompatible and well-nigh impossible to reconcile. These scholars must choose whether to attempt to "fit in" to the academy by embracing its norms and methodology or to provide "enrichment" to the academy by attempting to forge new schools of thought based on the very attributes that make them diverse.

The Janus-like position that these scholars find themselves in, that is, looking to the hegemonic majoritarian academy and embracing its norms in an attempt to "fit in," while simultaneously looking to and representing the diverse communities from which they come, creates within these scholars a sense of dislocation that is not felt by their majoritarian colleagues. If these diverse scholars choose to "fit in," are they viewed as abdicating the very thing for which they are prized? If they choose to embrace their diversity, to provide enrichment by presenting their unique views, will they be marginalized for presenting their unique perspective?

The prospect of invisibility is engendered by the choices facing these diverse scholars. Should these scholars choose to "fit in" and mimic the conduct and role of their majoritarian colleagues, the very diversity for which they are sought is lost to the academy--made invisible--if these diverse scholars clothe themselves with majoritarian garb. Diversity is not produced or enriched; it is hidden and obscured. Conversely, if these diverse scholars embrace their diversity and reject a strategy that asks them to "fit in" to academia, these scholars run the risk of being marginalized and made invisible because they provide "enrichment" based on their diversity. This enrichment is not viewed as integral to the central mission of the academy, but as peripheral or superfluous. As such, enrichment exists, if at all, only on the margins, an enterprise that is tolerated but not prized.

That leads to the last product of the multifaceted double bind faced by diverse scholars. Whatever choice they make, whatever strategy they pursue, these scholars are isolated. Invisibility alone can produce isolation. However, the isolation faced by these diverse scholars is not simply a product of invisibility. Indeed, it is a product of their status as diverse scholars. If these scholars are heard, they are not heard or recognized as individuals, but as representatives of previously excluded groups. In their scholarship, in their interactions with students and faculty, and in their daily relations with the academy, they bear the insuperable burden of being role models who inevitably are viewed through the lens of race, gender, or sexual orientation. No individual choice, whether to embrace or minimize difference, can extricate the outsider scholar from this dilemma.

V. Addressing The Challenges

This part begins with an explicit perspective: The challenges facing outsider scholars are too costly in many respects. First, to some extent, these challenges are destructive of the very talents these scholars bring to the academy. Second, these challenges result in the under-utilization of the talents that these scholars are attempting to incorporate into the larger body. This part, then, addresses, what can and should be done to address these challenges in ways that will result in the true integration of these outsider scholars into every facet of the academy.

Aside from increasing the numbers, a first-generation issue, to address the double bind that outsider scholars face when pulled by the demands of producing scholarship, representing their "unique" point of view on committees, and representing their constituency, the academy must find novel ways of supporting scholarship, given the heavy workloads that diverse scholars face. Thought must be given to expanding the traditional trilogy of what faculty members are expected to do, that is, teaching, scholarship and collegiality, to include and value what it is that these diverse scholars accomplish. Mentoring, counseling, and being a role model are valuable to the academy. That value must not be ignored or marginalized. The impact that those roles have on students, faculty, and the administration may be more beneficial in creating a productive environment for learning than the production of a plethora of law review articles on esoteric topics.

Similarly, it should be recognized that not all teaching takes place within the classroom and that collegiality should not be narrowly cabined to reflect the interaction that faculty have with each other. Our traditional paradigms must be expanded to reflect the fact that some faculty do their most effective work outside the classroom and that some faculty, particularly diverse faculty, sacrifice their time to deal with their constituent populations in order to create a harmonious environment in which all voices are heard, acknowledged, and respected. The peace or feeling of good will which flows from their efforts is a cost borne by these scholars so that a benefit may be provided to their colleagues. That sort of collegiality must be recognized and rewarded.

Specific steps must be taken to address the double bind that diverse scholars find themselves in as a result of their very diversity. Practical solutions must emerge that effectively value the unique position and contributions made to the academy by these diverse scholars. Although each institution will, of course, customize its response to this and related issues based on its history and position within the academy, given the mobility within the academy, a dialogue must begin in which the tenure "triad," that is, scholarship, teaching, and service, are expanded to include the service that these diverse scholars provide to the community in general and the legal community in particular as a result of the mentoring role and the unique responsibilities they assume for the plight of diverse students. These are real contributions, perhaps even more valuable than the publication of a successful article in a prestigious journal, that should properly be recognized. Concurrently, steps must be taken to reduce the sense of isolation that these diverse scholars feel as a result of their unique position. In addition to expanding their numbers, the academy must also develop practical solutions to this problem. It should encourage and fund mentoring, attendance at regional conferences, and the creation of support networks for research and teaching both within and outside the law school.

Finally, the academy must expand its definition of scholarship and find ways to foster diverse scholarship. As society becomes more diverse, so, too, must the academy’s approach to scholarly endeavors¹⁶¹. There is no longer one way of doing successful scholarship. As scholarship within the academy has evolved to embrace multi-disciplinary perspectives like law and economics, law and history, and law and literature, the academy must embrace and foster new types of scholarship. The academy must explore and internalize innovative methods to foster diverse scholarship. In addition to providing and funding mentoring programs for junior faculty (such as an on-going project sponsored by the AALS Section on Minority Groups), diverse scholarship should be encouraged through the use of colloquia which have as their goal the inclusion of all types and methods of scholarship. Conferences that focus on promoting diverse scholarship should be subsidized and organized. Similarly, the traditional evaluative process employed by the academy must be reevaluated to produce a standard that accurately assesses the worth of diverse scholarship. Moreover, as this work moves beyond legal doctrine to incorporate advances in the social sciences, outside reviewers and others qualified to assess the merit of such scholarship must be identified and incorporated into the evaluative process. In general, the message should emanate from the academy that all forms of scholarship are supported and recognized.