Volume 2016, No. 3

Symposium Issue: Critical Race Theory and Empirical Methods

 

Table of Contents

 

Empirical Methods and Critical Race Theory: A Discourse on Possibilities for a Hybrid Methodology

Mario L. Barnes

In 2006, I published one of my first law review articles as a legal academic, “Black Women’s Stories and the Criminal Law: Restating the Power of Narrative.” The article explored the particular ways that one’s social identity may inform how one is treated within the criminal justice system. At the center of the article was a story about my maternal grandmother, who had been arrested as an accessory to murder in 1968. The article sought to demonstrate how her individual identity was largely erased by the court and replaced with one that attempted to assess her culpability not just based upon her behavior but also based on her status as a black woman on welfare. To support this claim, the principal method of analysis within the article involved interrogating stereotypical descriptions of my grandmother deployed within the court’s papers. The effects of the stereotypes were rendered visible by comparing claims from the court’s documents to media accounts and personal family stories about her involvement within the case. At bottom, the article attempted to explore the inner workings of what UCLA Law Professor Devon Carbado had brilliantly previously described as the “crime of identity.”

As narrative discourse was at the heart of the article, this work became part of a pre-existing debate over the use of the method within legal scholarship, especially Critical Race Theory (CRT). Notable critics, such as Judge Richard Posner, and legal scholars, including Dan Farber and Suzanna Sherry, Anne Coughlin, Douglas Litowitz, and Dan Subotnik, derided CRT based on its use of allegory, autobiography, and other personal stories. The conventional criticism held that CRT’s reliance on narrative or “storytelling” was problematic because stories were neither verifiable nor necessarily typical and stood in opposition to more appropriate methods of legal inquiry that sought to elevate so-called objective and neutral truths. As a result of this skepticism, at the time, scholar Kim Scheppele noted a disjuncture within legal discourse involving the use of stories, where insiders were presumed to tell stories that were “officially approved” while outsiders were presumed to tell stories that were “officially distrusted.” 

Public Health Critical Race Praxis: An Introduction, an Intervention, and Three Points for Consideration

Chandra L. Ford

The field of Public Health has a progressive history of working with vulnerable communities to promote the health of all their residents, but it also has a complicated and problematic relationship to race. Its roles in racializing populations and disease as well as promoting scientific racism are well documented. At the same time, anti-racism resistance has always operated within the field, challenging it and influencing the contributions Public Health makes to society.

The field appears ready for a new anti-racism movement. Researchers increasingly draw on the tools available to them within this multidisciplinary field to conduct studies that might explain and challenge the fundamental ways in which racial stratification contributes to health inequities. Some health interventionists focus their efforts on helping communities raise racial consciousness or build community capacity to challenge racialized power differentials. All of these efforts occur within a context where the need for an anti-racism movement is palpable within and beyond the field.

In this essay, I explore ongoing anti-racism efforts within the field of Public Health. I briefly introduce the Public Health Critical Race Praxis (PHCRP), which is an iterative, empirical approach that while grounded in Critical Race Theory (CRT) is designed for Public Health research, and I discuss its potential to help advance an anti-racism health equity movement. I conclude with three key points for consideration, which are relevant both to the expansion of critical race empiricism within Public Health and to the potential of PHCRP to inform CRT more broadly. The first consideration reflects my concern that expanded uptake of PHCRP maintain fidelity to CRT, even though it must adapt to the needs of Public Health. The second consideration is a simple question: is the purpose of critical race empiricism merely to document? If so, what are the implications of this? The third consideration, which pertains to the critical race concept of voice as it is relevant to Public Health, highlights the need for those of us in Public Health to engage in dynamic de-centering within and outside the academy to reduce the possibility of privileging our perspectives over those of the communities within which and for which we work.

Racial Horizons and Empirical Landscapes in the Post-ACA World

Shaun Ossei-Owusu

In some legal circles, there is a popular saying that “law is too important to leave to lawyers.” Socio-legal scholars often deploy this cliché in an attempt to wrestle law out of its typically doctrinal confines and justify social science explorations of law. The idea is that subject matter expertise on law should not be limited to attorneys and J.D.-toting scholars but should be more of an interdisciplinary enterprise. I think the same could be said about another equally important field: health is too important to leave to the medical scholars and public health practitioners. This symposium represents a wonderful opportunity to consider ways to wed the theoretical heft of critical race theory (CRT) with the empirical strengths of social science research in accordance with invitations made by several scholars. The former—a theoretical paradigm that emphasizes the indeterminate, intersectional, and enduring nature of racism—has been around formally for almost three decades and weathered critiques about its usefulness as well as concerns about balkanization. Law schools have incorporated CRT in their curriculums; professors have included it in their instruction; student groups have started journals in the area; and, whether explicitly announced or not, it filters into legal scholarship on social identity (e.g., race, class, gender, sexuality, citizenship) in ways that are arguably beyond measurement. Moreover, despite calls for more interdisciplinary engagement with this theory, it is not limited to the confines of law.

Black Community Control over Police

M Adams & Max Rameau

THE MOMENT: FROM UPRISING TO ORGANIZING

This moment in which we find ourselves—full of urban rebellions blossoming hundreds of actions, including blocking traffic, stopping holiday sales, and protesting the police—has been building for years, alongside the intensifying campaign to criminalize low-income Black communities. Social movements develop over long periods of time as material conditions change—the genesis of the Civil Rights Movement can be traced to Black participation in WWII. Arguably, however, this Movement Moment began in earnest on February 26, 2012 with the murder of Trayvon Martin in Sanford, Florida. 

Angered at the lack of action from the police and prosecutor, the Black community lashed out in protest to pressure government officials—the same ones criminalizing us—to use their powers against those who attack us. The murder of Mike Brown by officer Darren Wilson marked a clear turning point in the burgeoning movement, as the Black community in Ferguson, Missouri rose up in brave and heroic—albeit entirely spontaneous—urban rebellion that shook the city, county, state, and entire United States.

The African (Black) people in Ferguson rose up and forged this Movement Moment with raw outrage and grit. As unplanned expressions of outrage, however, urban rebellions burn hot but have a limited life span. The spontaneity and raw emotion draw maximum attention, but the lack of political direction and coordination—the lack of organization—produces uneven and unpredictable results.

While a primary characteristic of urban rebellion is raw outrage, mass mobilizations represent an evolution of the general outrage into opposition against specific policies, laws, or practices. A primary characteristic of mass mobilizations, then, is a clear definition of what protesters oppose.

As such, the generalized outrage against Mike Brown’s murder that found expression in urban rebellion was funneled into the articulation of clearly defined injustices that are opposed: police terrorism, the criminalization of Black communities, police brutality, the school-to-prison pipeline, the use of traffic violations as government revenue centers, the unwillingness of district attorneys to prosecute cops who harm or kill unarmed Black people, the militarization of the police, and so on.

In the transition of the Moment from urban rebellion to mass mobilization, countless local communities followed suit, as protests spread across the country in response to the police murders of Eric Garner, John Crawford, Tamir Rice, Jessica Hernandez, Tony Robinson, Freddie Gray, Sandra Bland, and so many others. The growing protests, which continue to this writing, have been creative, poignant, and powerful, as everyday people put their bodies, and even freedom, on the line to bring attention to the terror leveled against Black communities in the United States and, ultimately, across the globe.

Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment

Osagie K. Obasogie & Zachary Newman

The Black Lives Matter movement launched in July 2013 after George Zimmerman was acquitted by a Florida jury in the shooting death of seventeen-year-old Trayvon Martin, an unarmed Black male. The incident giving rise to this emerging social movement—where the “hoodie” became a key part of widespread public debates on whether certain attributes or cues reasonably signal danger—reflects the most recent iteration of a longstanding respectability politics that has fundamentally shaped the perception and treatment of Black people for many years. This political debate has centered around the idea that Blacks can minimize or evade the injustices associated with discriminatory attitudes by behaving in a so-called respectable manner, i.e., dressing, acting, speaking, and even protesting in certain acceptable ways. As a social movement, Black Lives Matter can be understood as growing out of a specific opposition to respectability politics by insisting that regardless of any ostensibly non-respectable behavior— from Martin’s hoodie to Eric Garner selling loose cigarettes—their lives matter and should not be treated with deadly force.

To the extent that the Black Lives Matter movement has attempted to change public discourse regarding police brutality, this article assesses the public’s responsiveness to these claims through a singular yet important measure: the reporting of officer-involved deaths in local news media. Specifically, we ask, has the increased attention to officer-involved deaths spurred by the Black Lives Matter movement changed the way such incidents are reported in local news media? To investigate this question, we examine local newspaper reports of officer-involved deaths during five specific time periods: the month before George Zimmerman’s acquittal and four month-long periods following his acquittal at roughly six-month intervals. Although sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force. We conclude by discussing the embedded nature of respectability politics in American race consciousness and the need for change. 

Microclimates of Racial Meaning: Historical Racial Violence and Environmental Impacts

Geoff Ward

This article examines the socially constitutive force of historical racial violence, dimensions and mechanisms of environmental impact, enduring questions, and remedial implications. I stress the importance of empirical scrutiny of racial violence since the nineteenth century, both for the development of critical race perspective on its social force and to inform oppositional movements. Areas plagued by histories of racial violence are further theorized as microclimates of racial meaning where legacies of this contention alter population characteristics, structural and emotional dynamics, and contemporary life chances. I close with consideration of remedy, encouraging more intermediate approaches to legal and policy intervention that may aid in acknowledging and interrupting environmental impacts of historical racial violence.

Adjudicating Risk: AIDS, Crime, and Culpability

Aziza Ahmed

The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response. Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics, it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic. In the United States, the data is startling4: 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men. In 2016, the CDC found that one in two Black men who have sex with men (MSM), one in four Hispanic MSM, and one in eleven White MSM will contract HIV.

One of the many tools mobilized to curb the spread of HIV is the criminal law. In particular, the criminalization of HIV transmission and exposure sets out to penalize individuals who expose or transmit HIV to another person. New advancements in the science of HIV transmission suggest, however, that individuals on anti-retroviral therapy (ART) that have a low viral load are significantly less infectious. This new data, in turn, impacts the potential culpability of the individual living with HIV accused of exposing another to HIV.

In a novel contribution to the existing literature on the criminalization of HIV, this paper examines two cases, R v. Mabior and Rhoades v. State, in which courts adjudicate the question of risk of transmission. This paper argues that while the court’s consideration of treatment and low viral load to mitigate culpability is a positive move forward, it is important to note that the pre-existing maldistribution of access to HIV treatment means that only some of the accused will benefit legally from these scientific advancements. This could have a disparate effect on racial minorities who have less access to ART and, in turn, will not have the capacity to mitigate potential culpability by arguing that they are less likely to transmit HIV. 

Institutionalizing Essentialism: Mechanisms of Intersectional Subordination Within the LGBT Movement

Gwendolyn M. Leachman

Intersectionality scholars have long argued that the dominant legal interpretations of discrimination—as unidimensional bias based on separable axes of stigmatized identity—have become inscribed in the discourse and political agendas of the most prominent contemporary movements for equality. Drawing on the critical race theory (CRT) view of legal institutions as a tool of racial subordination, these scholars have shown how movements against racism, patriarchy, and homophobia have shoehorned broad-based struggles for social change into rights claims that conceptualize racial, gender, and sexual identities as uniform and monolithic categories of shared experience. Movement activists, hungry for change, have seized upon single-axis identity narratives, which offer both an ingrained political resonance and a legally legible framework with the potential to garner formal recognition. In so doing, these movements obscure the unique forms of oppression that occur at the intersections of these categories, perpetuating inequality among multiply subordinated individuals. 

Intersectional analyses of the LGBT movement have been at the forefront of this area of scholarship in recent years. Critics have documented how mainstream LGBT rights groups, dominated by White and class-privileged gay men and lesbians, have engaged in strategies and discourse that marginalize the needs and obscure the existence of low-income queers of color. LGBT activists have largely directed their efforts toward the pursuit of formal legal rights based on movement constituents’ “common” sexual identity. In basing their agendas on unidimensional assumptions of sexual identity, LGBT rights groups end up neglecting the needs of low-income LGBT people and queers of color, restricting effective intersectional representation. Furthermore, LGBT activists have strategically selected rhetorical strategies, such as “[f]acial comparisons between race and sexual orientation,” which essentialize race and sexuality and further marginalize intersectional realities.