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politics and identity (the latter being an inadequate proxy for the former). Exposing these difficulties helps to clear the

ground for the conception and organization of political projects that are not overdetermined by narrow notions of 

identity.

Structurally, the Article is divided in half. The point of departure for the first half is the notion that there is a top

and a bottom to discrimination. That is to say, some people are victims of discrimination and others are not. The latter

are on the top of discrimination; the former are on the bottom. The idea is simple enough. However, simple ideas often

mask complex social realities. In Part I, I suggest that this is in fact the case with looking to the bottom. In short, there

are a number of ways to do so. Part I offers six. Labeling each approach a model of the bottom, I query whether the

models cumulatively suggest that the bottom is neither locatable (there are multiple bottoms and they shift) nor

politically manageable (the bottom is too diverse to constitute a coherent identity around which people can organize). In

the second half of the Article, however, I assume away Part I's indeterminacy problems. I stipulate that there is a "there"

to the bottom that is locatable and manageable, but then ask, so what? To say that there is a bottom   [*1286]   does not

yet answer the question of why CRT should look there. In Part II, I explore and critique the justifications CRT offers for

adopting this epistemological approach. There is a direct relationship between the models I problematize in Part I and

the justifications for looking to the bottom I critique in Part II. The limited conception of race that informs at least some

of the models helps to explain the conflation of race and politics in the justifications Critical Race Theorists invoke for

looking to the bottom.

In Part III, I turn this theoretical argument about the difficulties of looking to the bottom to a specific example: a

current critique in (and of) CRT about the propriety and efficacy of Black/White conceptualizations of racism - what is

known as the critique of the Black/White paradigm. I argue that while the critique of the Black/White Paradigm usefully

reflects a multiracial understanding of the bottom, that understanding is incomplete. For one thing, the criticism of the

Black/White paradigm often obscures the multiracial effects of legal regimes formally articulated in Black/White terms.

However, as I will show, Black/White racial laws, such as Jim Crow laws, impacted the lives of non-Black people of 

color. For another, arguments against the Black/White paradigm often elide the asymmetrical relationship between

Whites and Blacks, failing to consider the social cost of occupying the negative end of a Black/White binary. I conclude

Part III by offering suggestions for the terms upon which critiques of the Black/White paradigm should be articulated.

I. What's on the Bottom?

This part articulates six conceptions of looking to the bottom and identifies the limitations of each. These limitations

are a function of narrow and essentialized conceptions of identity.

A. The Monolithic Model: Model I

[SEE FIGURE IN ORIGINAL]

Model I is perhaps the most straightforward way to articulate the idea that there is a top and a bottom to discrimination.

The model shows that   [*1287]  law, politics, and culture not only construct race,  n3 they socially position races. This

social positioning produces a dominant and a subordinate race.  n4 The former resides at the top of discrimination; the

latter at the bottom.

The Jim Crow era illuminates this dynamic. The law, politics, and culture of this era coalesced to produce a society

in which, with respect to Whites, Blacks were materially and symbolically subordinated.  n5 They were on the bottom.

Whites constituted the dominant race and were on the top. Even antiracist efforts to challenge racial hierarchies

reiterated the top/bottom racial logic of Jim Crow. Consider, for example, Justice Harlan's oft-quoted dissent in Plessy

v. Ferguson.  n6 While claiming that "there is no caste here [in America]" and making an appeal for the equal rights of 

Black citizens, Justice Harlan also argues that "the white race deems itself to be the dominant race in this country. And

so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all

time ... ."  n7 Here, Justice Harlan makes clear that formal and legal segregation is not required to sustain the "prestige, ...

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wealth and ... power" - that is, the superiority and supremacy - of Whites. Under this view, Whites, relative to Blacks,

have always been and will always be on the top. Central to Justice Harlan's thinking is the notion that, to the extent that

White Americans are concerned about their racial power, their racial prestige, and the character of the American

national identity, they should   [*1288]  focus not on denying formal legal rights to Blacks but on the very presence of 

the "Chinese." He writes:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United

States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese

race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United

States, while citizens of the black race in Louisiana ... are yet declared to be criminals, liable to imprisonment, if they

ride in a public coach occupied by citizens of the white race.  n8

In short, in one jurisprudential moment, Justice Harlan contests the formal application of racial segregation laws to

Blacks, legitimizes the idea of White superiority and Black inferiority, and entrenches the perception of "the Chinese"as unalterably different.

In at least three respects, Model I is incomplete. First, the model does not discuss, among other axes of difference,

gender, sexual orientation, or class. Yet, these aspects of identity unequivocally shape how race is lived.  n9 Second, the

model presupposes the existence of only two races: one dominant, the other subordinate. However, in America there is

more than one race on the bottom.  n10 The bottom, in other words, is multiracial. American multiracialism complicates

not only top/bottom racial dynamics but also the interactions among and between the racial groups on the bottom.  n11

Third,   [*1289]  there is more than one identity on top. Model I's undifferentiated representation of the top obscures the

reality that racial power is not a function of a monolithic White identity but of different categories of Whiteness.

B. The Multiracial Model: Model II

[SEE FIGURE IN ORIGINAL]

Model II complicates the picture. It defines the bottom multiracially and makes clear that there are several races on the

bottom. To the extent that this is the case, there are a number of questions one might ask. For example, are the legal,

political, and cultural processes that produce one race (for example, Asian Americans) the same as the legal, political,

and cultural processes that produce another (for example, Latinas/os)? Does the bottom have a top? In other words, are

some races less subordinated than others? By what criteria would we know? The model's symmetrical representation of 

the racial groups constituting the bottom conveys the idea that each group occupies the same social, economic, and

political position in society. Is this in fact the case? Put another way, is there a hierarchy to the bottom? And is it

appropriate to even ask? With respect to the last question, the progressively correct answer is no.  n12 The argument is

that engaging in discussions   [*1290]  about hierarchies of oppression - about which race is on the bottom of the bottom

- is problematic and politically divisive. But is this inevitably so? One could articulate a multiracial vision of antiracism

that is buttressed by what one might call "a politics of racial priority." Central to these politics would be the idea that,throughout American history, the different racial groups on the bottom have been unequally vulnerable to racism. The

point is not that the same racial group (Blacks, for example) is always the "face at the bottom of the well."  n13 Instead,

the notion is that the bottom of the well will always reflect a particular racial face.  n14

Assuming the political appeal of a racial priority model, it is not clear that such a model could be operationalized.

Rhetorically, one might ask, can oppression be quantified? One could argue that while it is fair to say that racial

subordination is experienced differently by different races (Blacks and Asian Americans are not racially subordinated in

the same way), any attempt to quantify racial subordination is likely to be futile (we cannot know whether Blacks are

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more or less subordinated than Asian Americans). This argument can be challenged, however. We could start with an

easy case.  n15 Suppose that there are two racial groups - Group A and Group B - with similar socioeconomic and

political standing. The government decides to prohibit both Group A and Group B from voting, but also places every

member of Group A in a concentration camp. If, under this scenario, I raise the question as to which group is in the

worst position, most, if not all of us, would respond with Group A. If Group B has limited economic and political

resources, it will have to decide how to use those resources to oppose the government's racist policies: focus on its own

problems or reach out and help Group A. Under a racial priority model, Group B would not be required to ignore its

own disenfranchisement, but it would be required to focus its energy on ameliorating Group A's racial predicament.

To be sure, our social realities and complicated histories make the project of quantifying oppression far more

difficult than the hypothetical suggests. For one thing, each racial group in America is differently situated with respect

to the level of our knowledge of each group's history and current status. Thus, although our national understanding of 

Black history and contemporary reality is not nearly as complete or sophisticated as it ought to be, it is far more

complete than our understanding of the history and contemporary reality of Native Americans, Asian Americans, and

Latinas/os. In   [*1291]  other words, we have imperfect racial information, and the racial information we have may

privilege the experiences of Black people. Further, even to the extent that we manage to overcome the problem of 

imperfect racial information, there are likely to be serious disagreements about the relevant criteria for determining

racial priorities. These problems might caution against a model of antiracism that attempts to delineate the bottomhierarchically.

C. The Race/Class Model: Model III

[SEE FIGURE IN ORIGINAL]

One of the fundamental criticisms of CRT is that it has not been sufficiently attentive to class. This argument is often

deployed to question the effectiveness of affirmative action as a tool for racial equality. The claim is that, for the most

part, affirmative action helps only the most privileged people of color.  n16 The truly disadvantaged, the people who are

on the bottom of the bottom, are not in an economic position to exploit the opportunities affirmative action programs

afford. n17

[*1292]  One need not endorse the foregoing argument to accept the more general proposition that class structureshow race is lived. Model III helps to illustrate this idea by including the various class identities of race. Two sets of 

comparisons are highlighted in the model: intraracial and interracial. The intraracial comparisons focus on the class

dynamics within a particular racial group. Here, one might ask, among other questions: How are Black working-class

experiences different from the experiences of the Black poor? Does the Black civil rights agenda focus on middle-and

upper-class Blacks? Is it possible to articulate a civil rights agenda that accounts for, and meaningfully incorporates,

intraracial class differences?

Model III's interracial comparisons focus on the class dynamics amongst the different racial groups on the bottom.

Here, one might ask, among other questions: What are the similarities and differences between working-class Latinas/os

and working-class Asian Americans? Do these two groups occupy the same place on the bottom? More generally, are

there meaningful social, economic, and political interracial interactions amongst people of the same class on the

bottom? In other words, does the bottom reflect a class identity that transcends race? These are empirical questions thatCRT needs to engage.

D. The Race/Class/Gender/Sexual Orientation Model: Model IV

[SEE FIGURE IN ORIGINAL]   [*1293]  Model IV incorporates the idea that how we experience race is a function of 

our gender and sexual orientation. It raises the question, then, whether gender and sexual orientation create axes of 

difference, privilege, and marginalization within a particular racial group. Informing that question are the following two

notions: (1) that homosexuality is "different" and marginal vis-a-vis heterosexuality,  n18 and (2) that female identity is

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"different" and marginal vis-a-vis male identity.  n19 Model IV illustrates that this difference and marginalization creates

an intraracial hierarchy. Focusing on Latina/o identity, the model indicates what this hierarchy might look like.

Upper-class heterosexual Latinos constitute the top; poor lesbian Latinas constitute the bottom.  n20 The question is, to

what extent does this theory reflect social reality?

Although Model IV focuses on intraracial dynamics, it raises important questions about interracial dynamics as

well. Specifically, the interracial questions that were raised with respect to class in the previous discussion of Model III

can be revisited to address gender and sexual orientation identity. For example, is there a gender consciousness  n21

among the groups on the bottom (or a sexual orientation consciousness) that transcends race?

[*1294]

E. The Ethnicity Model: Model V

1. The General Idea

[SEE FIGURE IN ORIGINAL]

Model V questions the idea that race is necessarily the most appropriate starting point for organizing the bottom.Using the example of Native Americans, the model asks does race best explain their contemporary and historical

experiences? Put another way, are Native Americans "raced"? Do Native Americans self-identify as a race? Finally, to

what extent does the identity category Native Americans conflate groups with distinct histories and cultural practices?

n22

Each of the foregoing questions can be raised with respect to the other groups on the bottom as well. For example,

the identity category of Asian Americans conflates, among other ethnic groups, Japanese Americans, Chinese

Americans, and Korean Americans. This conflation produces a controversial pan-ethnic social and political identity. For

one thing, each of the groups that constitutes this umbrella identity does not have an equal opportunity to define it. In

this sense, some racial groups are less conflated than others. Stated differently, the experiences of one ethnic group (for

example, Japanese Americans) may overdetermine the content of the pan-ethnic group (for example, Asian Americans).

[*1295]  More generally, ethnicity-based theories of social organization challenge the idea that, because two

ethnically distinct groups are socially constructed - categorized - into one racial group, the two groups should acquiesce

to, legitimize, or reify that categorization through the assertion of an umbrella identity. This is not to suggest that the

two ethnicities should resist cooperative political organization against racism. Instead, the point is to question the

(racial) identity terms upon which this organization takes place.

2. Black Ethnicity

Model V suggests that Black identity also fits into ethnicity-based theories of social groups. While it is widely

recognized that the Asian American community and the Latina/o community reflect the political organization of distinct

ethnicities and nationalities, few people pay attention to or even acknowledge the multiethnic, multinational nature and

historical origin of the Black community. It bears mentioning, then, that

Blacks, like Latinos/as or Asian Pacific Americans, are neither an "ethnicity" nor a "race." We too may opt to consider

ourselves an amalgamation of national origins - a "conflation" of national origins. We, especially, have been forcibly

thematized as an amalgamation of national origins. What could more cruelly highlight this obvious fact than the Middle

Passage. All manner of nations went into the wombs of those terrible ships to be born again "as Blacks" after a

transatlantic labor-of-hate.  n23

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And one need not (directly) invoke slavery to suggest that Black America is multiethnic. One could simply point to the

obvious fact that contemporary Black America comprises immigrants from Latin America, the Caribbean, Europe, and

various parts of Africa.

[*1296]

F. The Differentiated Whiteness Model: Model VI

[SEE FIGURE IN ORIGINAL]

Each of the preceding models examines the bottom of discrimination. Model VI examines the top: White identity.

This examination highlights that Whiteness is not monolithic. How a person experiences Whiteness (and thus her access

to White privilege) is a function of, among other aspects of identity, that person's gender, sexual orientation, and class.

This observation suggests that just as there may be a hierarchy to the bottom, there may also be a hierarchy to the top.

Model VI divides Whites by class, gender, and sexual orientation to illustrate the configuration this might take:

Upper-class White heterosexual men constitute the top, and poor White lesbians constitute the bottom. Here again, onemight ask whether this model reflects social reality.

Model VI's analysis of Whiteness is useful but incomplete. While gender, sexual orientation, and class are included,

ethnicity and religion are not. This obscures the discrimination that White Americans of various ethnicities experienced

on their way to becoming White,  n24 that is, to gaining access to privileges traditionally reserved for upper-class,

Anglo-Saxon Protestants.

Finally, although Model VI is intraracially focused, it implicates interracial dynamics as well. One might ask, for

example, whether a class, sexual orientation, or gender identity consciousness exists between Whites on the   [*1297]

top and people of color on the bottom. This question is not merely academic. It provides a window through which to

explore the possibilities for, and to identify the obstacles that might interfere with, meaningful interracial coalitions.

Thus far, I have focused on the conceptual difficulties of looking to the bottom. These difficulties derive from thefact that the bottom is multiracial, multiethnic, and comprises different classes, genders, and sexual orientations.  n25

Assuming these difficulties away, one still might ask, why look to the bottom? What is to be gained from adopting this

methodology? To this question, CRT offers several answers, each of which can be challenged. In the next part, I

organize these answers under the following rubrics: substantive outcome, credibility, authenticity, and voice. I discuss

each one in turn.

II. Why Look to the Bottom?

This part sets forth four justifications CRT offers for looking to the bottom. While each justification has a certain

degree of intuitive appeal, none, standing alone, is completely satisfying.

A. Substantive Outcome

One argument for looking to the bottom is that it is likely to lead to the right substantive outcome in deciding a

particular social question.  n26 Richard Delgado, for example, has suggested that looking to the bottom (to the voices of 

minority legal scholars) yields a particular justification for affirmative action: retribution.  n27 Mari Matsuda has argued

that looking to the bottom leads to a particular remedial model for addressing historical subordination: reparations.  n28

For both Delgado and Matsuda, then, there is a nexus between the process of looking to the bottom and a specific

remedial outcome or result.

[*1298]  Strong versions of this claim  n29 can be critiqued as both over-and under-inclusive. That is to say, looking

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to the bottom will not always lead to a reparations-based remedial regime or a retributive justification for affirmative

action, and looking to the top might yield both. Consider the table below.

[SEE TABLE IN ORIGINAL]

Matsuda's look to the bottom leads to the right political outcome, as does Delgado's. But what if the bottom isJustice Clarence Thomas - a minority voice and a minority legal scholar - and the top is Professor Duncan Kennedy, a

White voice and a White legal scholar? Looking to the former would yield the wrong substantive result; looking to the

latter would achieve the right result.  n30

One way to respond to the Clarence Thomas/Duncan Kennedy problem would be to say that, although the people

on the bottom speak in a different voice, that voice is not monolithic. In other words, to say that race shapes how

individuals think about social issues (for example, affirmative action) is not to say that race will determine how

individuals will decide those issues (for example, whether they will be for or against affirmative action). This is not a

satisfying response, however. After all, it is the outcome - the   [*1299]  position that the individual articulates - that

drives the substantive outcome justification for looking to the bottom.

B. Authenticity

The authenticity argument for looking to the bottom concedes that looking to the bottom might produce the wrong

political outcome. It recognizes, for example, that with respect to an important and controversial social question like

affirmative action, looking to the bottom is likely to elicit political positions that (1) support affirmative action, (2)

oppose affirmative action, or (3) are indifferent to affirmative action. The reason to look to the bottom is not to generate

a particular substantive outcome, but to get an authentic voice. There are two versions of this authenticity argument: the

claim that authenticity equals identity, and the claim that authenticity equals identity and politics.

1. Authenticity Equals Identity

Under one view of authenticity, each of the preceding responses to affirmative action is authentic. To understand why

this is the case, imagine that three different Black people produced each of the three responses. The authenticity equals

identity claim is that each response is authentic because each derives from the ontological racial position of beingBlack. Authenticity here is a function of the identity of the speaker. More specifically, it is the identity of the speaker

that gives the speaker's voice epistemological legitimacy. This conception of authenticity disaggregates who is speaking

from what is being said.

But how useful is this conception of authenticity for advancing antiracist policies? To the extent that the

authenticity of a particular perspective is linked to the speaker's identity (as opposed to, for example, the speaker's

politics), aren't left-oriented antiracist positions significantly undermined? Consider, for example, former President

George H.W. Bush's nomination of Clarence Thomas to the U.S. Supreme Court. Thomas' confirmation hearing was

anything but uncontroversial.  n31 Anita Hill, who was at the time a law professor at the University of Oklahoma law

school and was a former aide to Thomas, alleged that Thomas had sexually harassed her.  n32 The allegations - and the

fact that they involved a Black man, a   [*1300]   Black woman, and a story about sexuality - created a public spectacle

around Thomas' nomination.  n33 It was decidedly unclear whether he would be confirmed.

In three significant respects, Thomas' racial authenticity - the fact that he is Black - facilitated his nomination to the

Supreme Court. First, notwithstanding Thomas' conservative positions on such important social questions as affirmative

action, welfare reform, crime, and gender equality,  n34 "clusters of black people prayed in front of the White House for

the Lord   [*1301]  not to abandon them, to intervene and crush the forces that would prevent a Black nominee to the

Supreme Court from assuming the seat felt by them to be reserved for a member of the race."  n35 Even the National

Association for the Advancement of Colored People (NAACP) was slow to challenge Clarence Thomas' nomination.

n36 Indeed, initially, several members of the organization's board held a secret meeting with Thomas with the hope that

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they might get some assurances with respect to the legal positions he might take on civil rights issues.  n37 What was

important for the Blacks who supported Clarence Thomas (and those who refused or were slow to publicly criticize

him) was his race, that is to say, his racial authenticity.  n38 His anti-Black community politics were of lesser concern.

The White House anticipated this. In fact, the White House's public relations campaign to the Black community was

specifically structured to exploit the political currency of Black authenticity. In effect, the pitch was this: "We're gonna

get a Republican in this seat no matter who [or what race] he is. It's better to support an Afro-American because we

don't know who [or the race of the person] they will put up next time."  n39

Second, it was precisely because Thomas is Black and conservative that George Bush nominated him in the first

place. n40 Thomas' Blackness rendered his appointment to the Supreme Court a racial replacement: Specifically, one

Black man (Clarence Thomas) was replacing another (Justice   [*1302]  Thurgood Marshall). This crude focus on race

obscured the fact that one set of racial politics was about to replace another.  n41 Presumably, this was precisely what

Bush was counting on when he nominated Clarence Thomas - that his Black racial identity would in some contexts

legitimize and in others obfuscate his anti-Black community politics.

The third way in which Thomas' racial authenticity facilitated his nomination to the Supreme Court relates to the

softness with which Democratic senators engaged him. For one thing, White male class-privileged members of the U.S.

Senate were decidedly uncomfortable challenging the racial views of a Black man from rural Georgia. n42

As oneDemocratic staffer asked, "How could these ultra-liberal white senators be pro-affirmative action in the face of a

self-made black man saying 'we don't need their programs'?"  n43 For another, none of the White male senators wanted to

be perceived as part of a high-tech lynch mob.  n44 Clarence Thomas' dramatic announcement that the confirmation

process was a form of high-tech lynching  n45 - that he was being disciplined for being uppity - protected him from

[*1303]  sustained and critical (White male) interrogation. Even witnesses who were lined up to testify on Hill's behalf 

experienced the weight of the lynching metaphor. As one person commented, "I felt that if Thomas wasn't confirmed I,

and other witnesses for Hill, would be held responsible for a great injustice."  n46 Thomas' claim that the hearing was a

modern-day lynching helped to render him authentically Black.

2. Authenticity Equals Identity and Politics

Under an alternative view of authenticity, the question of who is speaking begins rather than ends the authenticity

inquiry. On this view, authenticity is not just a function of who is speaking (that is, identity), but is also a function of 

what is being said (that is, politics). Under this conception of authenticity, Clarence Thomas' racial politics are

inauthentic. Some might even go so far as to say that Clarence Thomas speaks in a "White voice." Assuming the

legitimacy of this latter point, one might ask whether it is possible for a White person to speak in a Black voice. Is, for

example, Duncan Kennedy's voice, because it is politically progressive and sensitive to Black community politics,

Black? If the answer is yes, Duncan Kennedy becomes a White man with a Black voice (which parallels the idea that

Clarence Thomas is a Black man with a White voice). If this is so, why talk about voice and identity at all? Why not just

focus on politics? Why invest identity with political ideology? Finally, if Kennedy's voice is Black, why doesn't this

render him Black? Why, notwithstanding his voice, does he remain White? If the answer is phenotype, doesn't this

acquiesce to biological conceptions of race, which CRT rejects?

One response to all of this is to say that Blackness and Whiteness function as representative discourses - not

identities per se. Thus, the notion that Clarence Thomas speaks in a White voice is not a claim about him having aWhite identity; it is a claim about him representing the voice of power. Central to this argument is the idea that in

America, access to social resources - education, employment, housing - is racialized to the advantage of Whites and the

disadvantage of non-Whites. Clarence Thomas' racial and conservative jurisprudence/politics entrenches that social

arrangement. This is the sense in which his voice is White.

Conceptualizing authenticity-equals-identity-and-politics in this way is more satisfying. But note that no longer are

we talking about the identity of the speaker as being significant, but rather the identity that we can associate with what

is being said. Kennedy's voice is Black in a representative sense; in terms of identity he remains White.

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[*1304]

C. Credibility

A third reason often given for looking to the bottom is that the voices at the bottom have credibility. This credibility

argument is linked to authenticity: To the extent that a person has authenticity, her voice is credible. Under this view, if 

Whites and Asian Americans reach different conclusions on the question of whether a particular social circumstance

reflects racism, the Asian American voice should carry the day. It is, racially speaking, more credible.  n47 The argument

is based on that notion that Whites are the beneficiaries and perpetrators of racism (therefore, their perspectives cannot

be trusted), and Asian Americans are the victims of racism (therefore, their voices should be listened to).

The credibility argument is not without problems. First, the concerns raised in the context of the authenticity

discussion are relevant here as well. Specifically, because credibility (like authenticity) is linked to identity,

conservative Latino/a voices have the same credibility as progressive Latino/a voices and greater credibility than

progressive White voices. This can undermine left-oriented antiracism and facilitate crude identity politics. In addition,

the credibility argument can be used against people of color. In other words, one can employ the rhetoric of identity and

experience to call into question the credibility of people of color and to legitimize the credibility of Whites. To continue

the example involving Asian Americans and Whites, one could use the notion of credibility to argue that AsianAmericans are less likely than Whites to be objective witnesses to alleged Asian American racial victimization. As a

racially subordinated group, the argument might continue, Asian Americans are too invested in finding discrimination.

Of course, this argument can be challenged. It assumes that Whites, racially speaking, are "perspectiveless"  n48 - that is,

racially neutral. Put another way, the claim that Asian Americans are likely to be overly invested in finding

discrimination obscures the extent to which Whites are likely to be under-invested. Still, the helpfulness of arguments

about credibility is not clear.

D. Voice

Each of the preceding justifications for looking to the bottom raises concerns about voice. Each assumes the races on

the bottom are in an economic and political position to describe, and to have people take notice of, the circumstances

under which they live. But this may not in fact be the case. The people on the bottom may not have meaningful

opportunities to   [*1305]  be heard. The argument that voice in and of itself is an important reason to look to the bottom

is twofold. First, looking to the bottom is an effective way to capture what people of color are saying about their social

realities. To the extent that one looks to the top, these voices will be lost. Second, looking to the top creates the potential

for an epistemological dominance problem: White people speaking for and definitively about the people on the bottom.

This is precisely the problem Richard Delgado forcefully demonstrates in the "Imperial Scholar" - an "inner circle" of 

White men defining the content and the scholarly trajectory of racial equality discourse.  n49 Importantly, the concern

about voice can but need not be about what is being said. The fundamental issue is whether the races on the bottom

have the opportunity both to speak and to be heard, that is to say, to participate in the production of knowledge.

III. Getting to the Bottom of the Black/White Paradigm

The starting point for this Article was the idea that looking to the bottom in order to capture and ameliorate the

experiences of discrimination is far more complicated than Critical Race Theorists openly discuss. To the extent thatracial identity is not monolithic and there is more than one race on the bottom, it is difficult to know precisely where on

the bottom to look and how to make sense of what one sees. At least one current debate in CRT reflects these

difficulties: the critique of the Black/White paradigm.

Though the critique of the Black/White paradigm takes a variety of rhetorical forms, the argument, roughly

speaking, looks something like this:

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Questions of race and racial injustice are conceptualized exclusively or predominantly in Black and White terms. As a

result, Black racial experiences are privileged in discussions about race, while the experiences of other racial minorities

are marginalized. This marginalization is linguistically manifested in the phrase "Blacks and other minorities." "Other

minorities" becomes a catch-all for people of color who are not Black. Black people thus become the paradigmatic

example of a racially subordinated group.  n50

As I have argued elsewhere, it is important for critical race scholars to address the concerns that inform the

Black/White paradigm critique. Antiracist politics should not reflect the notion - implicitly or explicitly - that "racial

subordination and Black subordination are one and the same thing."  n51 The bottom of discrimination is and historically

has been multiracial.

[*1306]  However, to say that we ought to recognize and to pay attention to the multiracial manifestation of racial

subordination, is not to say that all of our discussions about race should be multiracially focused. "We can, should, and

sometimes must racially particularize our political [and civil rights] engagements."  n52 For example, it would have been

difficult for proponents of antiracism to challenge the internment of Japanese Americans without paying attention to theparticular racial discourses, among them notions of "yellow peril" and "unalterable difference," that the government, the

military, and even the Supreme Court mobilized to effectuate the incarceration of Japanese Americans and the

dispossession of their property.  n53 Indeed, while Japanese American internment took place in the era of Plessy v.

Ferguson, the racial politics of internment were not coextensive with the racial politics of Jim Crow. In America in the

1940s, Black Americans and Japanese Americans were subject to both similar and dissimilar forms of racial

discrimination. Discourses particular to a specific race help to make this apparent.

Yet racial discourses that center on a single racial identity are not per se unproblematic. Sometimes they reflect an

epiphenomenal understanding of racism. Consider, for example, the claim that Black-centered antiracism will

necessarily ameliorate the racial subordination of other people of color. Informing this claim is the notion that

Blackness has the representative capacity to capture fully the racial experiences of the people on the bottom. Opponents

of the Black/White paradigm should continue to challenge this "total theory."

Unequivocally, the critique of the Black/White paradigm has broadened our understanding of the bottom in

important ways. Yet proponents of the critique are not always sensitive to the fact that the Black side of the paradigm is

on the bottom. Stated differently, their analysis obscures that the Black/White paradigm is constituted by a racial

asymmetry. The obfuscation of this asymmetry helps to legitimize an antiracist narrative in which Black people and

White people unite to tell a common Black/White racial story about American law, history, and politics. Racial critics

of the Black/White paradigm should be careful to point out that there is a top and a bottom to the Black/White paradigm

n54 - that historically the paradigm has reflected racial division and contestation, not racial unity and coalition. The

project of this final part is to set forth nine concrete suggestions for the   [*1307]  racial terms upon which the critique of 

the Black/White paradigm should be articulated.  n55

1. The Black/White paradigm critique should not be employed to suggest, explicitly or implicitly, that America has

grappled fully with the nature and extent of racism against Blacks. The fact that Blacks may occupy a central racialspace in the American social and political imagination does not mean that the ways in which Black people are imagined

(a) comport with how Blacks see themselves or (b) reflect their cumulative social experiences on the bottom.

2. The Black/White paradigm critique should acknowledge that there are several costs associated with occupying

one end - the negative and subordinating end - of a polarity. Much of the critique of the Black/White paradigm focuses

on how, vis-a-vis other people of color, the Black/White paradigm privileges the racial victim status of Blacks. Little

attention is paid to the ways in which, vis-a-vis other people of color, Black people might be disadvantaged as a result

of being included in the paradigm.

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3. The critique of the Black/White paradigm should not essentialize or monolithically represent the Black/White

paradigm. There is not one Black/White paradigm for understanding American race relations, but several. Critiques of 

the Black/White paradigm implicitly suggest that the Black/White paradigm advances a single thesis about American

race relations that is primarily or exclusively about White and Black Americans. But a Black/White paradigm

understanding of American race relations can, and in its sophisticated iteration should, have a multiracial focus. One

could, for example, examine the ways in which all people of color, and not just Blacks, have been racially subject to

Black/White-structured legal and political regimes.

Three examples will suffice to make this point. First, in People v. Hall,  n56 the Supreme Court considered whether a

California law that prohibited Blacks, Mulattos, and Native Americans from serving as witnesses in cases in which a

White defendant was on trial also prohibited people of Chinese descent from so serving. Hall was charged with the

murder of a Chinese woman. At trial, after hearing testimony from three Chinese and one White witness, the jury

returned a verdict of   [*1308]   guilty.  n57 The Supreme Court overturned the conviction. Reasoning, in effect, that

Blackness is a racial metaphor, a signifier for non-White identity, the Court held that the testimony of the three Chinese

witnesses was improperly admitted.  n58 Under the Court's view, the Chinese witnesses were, for purposes of California

law, Black.

Second, in Ozawa v. United States, n59

the Supreme Court was called upon to determine whether Takao Ozawa waseligible for naturalization under an immigration and naturalization statute that granted the right of naturalization to "free

white" people and persons of "African nativity" and of "African descent."  n60 Invoking both the fact of his skin tone and

his assimilated lifestyle, Ozawa asserted that he was White. The Supreme Court rejected his claim. Ostensibly applying

a scientific test, the Court argued that people of Japanese descent are "clearly of a race which is not Caucasian ... . A

large number of the federal and state courts have so decided ... . These decisions are sustained by numerous scientific

authorities ... ."  n61 Here again the experiences of a non-Black/non-White group are being shaped by a law that is

articulated in Black/White racial terms. Because Ozawa is neither Black nor White, he lacks the racial standing to

naturalize.

A final example of this phenomenon is Gong Lum v. Rice.  n62 Gong Lum challenged the separate but equal regime

in Mississippi when his daughter, Martha Lum, was denied the right to attend an all-White high school. His argument

was that because Martha was not "colored ... mixed blood, but ... is pure Chinese,"  n63 the state of Mississippi could not

legally prevent her from attending the all-White high school in her district.  n64 The Supreme Court affirmed the

Mississippi Supreme Court's rejection of Lum's argument. The Mississippi Supreme Court had held that the Mississippi

Constitution requires the state to have colored schools and White schools.  n65 It reasoned that because there was no

controversy with respect to Martha being non-White, she was ineligible to   [*1309]  attend the White schools.  n66

Central to the Court's analysis is the idea that while the term "colored" emerged with reference to Black identity, its

meaning in the Mississippi Constitution is broader, covering non-White identity as well. Stated differently, for purposes

of Mississippi law, Martha Lum, was not simply non-White; she was also colored.

Hall, Ozawa, and Gong Lum illustrate that while legal regimes are sometimes articulated in Black and White racial

terms, they will often have a multiracial regulatory effect. The critique of the Black/White paradigm should reflect an

awareness of the historical manifestation and contemporary significance of this racial dynamic.

4. Part of the problem with discussions about race is that they tend to link each racial group to a particular form of racism. While establishing such linkages is important, they can overdetermine how we think about the relationship

between racial identity and racial vulnerability. This overdetermination helps to explain why Asian Americans

disappear in the context of discussions about Jim Crow laws and why Black people disappear in the context of 

discussions about immigration. The Black/White paradigm critique should not facilitate or contribute to this

phenomenon. Proponents of the critique should help us understand the multiracial impacts of the various racial regimes

- Jim Crow, immigration, colonialism - under which the people on the bottom have lived.  n67

5. The Black/White paradigm critique should continue to explore whether Blackness can and should function as a

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pan-racial identity. This exploration could engage, among other questions, the extent to which the assertion of 

Blackness by non-Black people of color would help to disrupt existing racial schemas and thereby undermine racism. I

should be clear to point out that I am not arguing for pan-racial Black identifications. Such identifications may not work 

as an antiracist strategy. Indeed, they could very well entrench the Black/White paradigm by investing Blackness with a

representative capacity that Black identity simply lacks. My thinking, though, is that to the extent that the term "Black"

is a cultural and linguistic signifier of what is wrong/bad/evil/corrupt,  n68 it is worth exploring whether a multiracial

embrace of the term could alter, or at least undermine, its negative social meanings.

[*1310]  6. The Black/White paradigm critique is almost always employed to suggest that non-Black people of 

color have been harmed by the Black/White paradigm. Critics argue that, as a result of the Black/White paradigm,

antidiscrimination laws and antidiscrimination efforts more broadly do not always respond to the racial harms Asian

Americans, Latinas/os, and Native peoples experience.  n69 This critique has considerable force. Consider for example,

the argument that Asian Americans and Latinas/os should not be entitled to affirmative action.  n70 This idea has been

and should continue to be vigorously challenged.  n71 Often this challenge is part of a broader argument that the

Black/White paradigm victimizes non-Black people of color because it does not capture the nature and extent of their

respective racial subordination. However, this claim does not tell the whole story about the political and racial

relationship that non-Black people of color have had to the Black/White paradigm.

Non-Black people of color have not always been interested in identifying themselves with the Black or

marginalized side of the Black/White paradigm. In fact, there are moments in American history when certain Asian

Americans and Latinas/os have attempted to achieve equality by asserting that they are not Black or like Blacks, and/or

that they are White.  n72 To be sure, the reasons for these assertions are complicated; sometimes they reflect pragmatic

racial politics. Sometimes they reflect the terms upon which these groups are forced to engage the legal system. Still

other times they reflect difficult questions about agency, about choices under constraints. Nonetheless, discussions of 

the Black/White paradigm should address head-on the phenomenon of non-Black assertions of White (or non-Black)

identity. I call this "interracial distancing": the extent to which one minority group adopts a "civil rights" strategy to

distance itself racially and politically from another minority group. Certainly Blacks have engaged in this strategy.

Indeed, in another paper I am examining whether interracial distancing is implicated in Black civil rights responses to

Japanese American internment.  n73 The point, then, is not that non-Black people of color have engaged in interracial

distancing and that Black people have not. Rather, the point   [*1311]  is that the critique of the Black/White paradigm is

incomplete to the extent that it fails to identify the specific ways in which people of color have (a) engaged in interracial

distancing and (b) attempted to occupy both the marginalized and the privileged ends of the Black/White paradigm.

7. Notwithstanding the fact that the bottom is multiracial, the Black/White paradigm critique should be tolerant of,

and appreciate the necessity for, race-specific, including Black-specific, antiracist discourse and political activity.

Antiracism that is structured around a particular racial group is potentially problematic, but not inevitably so.

8. If part of the Black/White paradigm critique is the suggestion that Blacks (on the bottom) have played a role in

constituting this paradigm, it should indicate the nature of this role (and it ought to be something more than Blacks

writing about Blacks) and how this role differs from or is the same as the role that Whites (on the top) play in

constituting the paradigm. I raise this point to suggest that, even to the extent that Blacks and Whites are racially

invested in the Black/White paradigm, the nature of their racial investment is likely to be quite different. Black 

investment might reflect what Angela Harris calls "Black exceptionalism" - the notion that Black people are andhistorically have been the racially subordinated amongst the racially subordinated.  n74 White investment, in addition to

reflecting this form of exceptionalism, is likely to reflect another: Racially speaking, Blacks are exceptionally different

from Whites, that is, the very opposite of Whites.  n75 Under this latter form of exceptionalism, White is what Black is

not (and can never be), and Black is not (and can never be) what White is. In other words, there may be meaningful

differences between the stories that Black people employ the Black/White paradigm to tell and those that White people

tell using the very same paradigm. Certainly, it is not the case in a macropolitical sense that Black people and White

people are working together to tell the same Black and White story about American race relations.

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9. Finally, much of the critique of the Black/White paradigm emerges out of a new intellectual movement in the

academy: LatCrit Theory (LCT). This new movement is impressive, exciting, and intellectually and politically

engaging. Already, it has generated six symposia and a seventh is   [*1312]   underway.  n76 While the conferences are

predominantly Latina/o, many non-Latinas/os identify as LatCritters and have contributed to (and have been

meaningfully incorporated into) LatCrit's intellectual and political community. To the extent that the Black/White

paradigm critique is linked to LCT, the critique should address whether and to what extent there might be a

contradiction between the assertion of a LCT movement and the critique of a Black/White paradigm. I am not

suggesting that there is necessarily a contradiction, but rather that there should be a discussion as to why there is not.

LCT emerged out of CRT and a political choice was made to give the theory a new name and, more particularly, to

signify an identity in the theory. What is the precise purpose of this signification? Does it mean that Black Americans

(of various ethnicities) should write as Black Crits and that their scholarship should be considered Black Crit theory? Is

the purpose of the Latina/o signification to center (or to focus on) Latina/o identity? Vis-a-vis other racial groups on the

bottom, what are the implications of this centering? Does it (could it) create another sort of paradigm? In terms of 

progressive antiracism, would this paradigm be politically legitimate?

Quite clearly, there are other concerns one might raise with respect to how the Black/White paradigm critique is

articulated. The foregoing is intended to begin but certainly not end the conversation.

Conclusion

The project of this Article was rather limited: to suggest that CRT has insufficiently theorized what it might mean to

look to the bottom. This is not to say that there has been no theorizing around this question. The point instead is that

Critical Race Theorists rarely have directly engaged this issue. This lack of direct engagement creates the

(mis)impression that antiracist proponents can easily locate and politically manage the bottom.

In fact, however, the bottom is terribly complicated. For one thing, there are a number of races on (and to) the

bottom. For another, each race is structured by (among other aspects of identity) class, sexual orientation, and gender.

Still a third complication derives from the fact that there is no necessary relationship between identity/experience and

politics/perspective. To put the point another way, people from the same identity category frequently will speak in a

different voice. While these difficulties do not, without more, caution against looking to the bottom, they do require us,

Critical Race Theorists, to articulate with greater clarity why we remain committed to doing so.

Legal Topics:

For related research and practice materials, see the following legal topics:

Civil Rights LawPrisoner RightsSegregationLabor & Employment LawDiscriminationGender & Sex

DiscriminationCoverage & DefinitionsSexual Orientation

FOOTNOTES:

n1. See generally, e.g., Regina Austin, Sapphire Bound!, 1989 Wis. L. Rev. 539; Robert S. Chang, Toward An Asian American Legal

Scholarship: Critical Race Theory, Post Structuralism, and Narrative Space, 1 Asian L.J. 1 (1994); Kevin R. Johnson, Race Matters:

Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique, 2000 U. Ill. L. Rev. 525;

Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987).

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n2. Numerous legal scholars have questioned the soundness of "looking to the bottom." See, e.g., Daniel A. Farber & Suzanna Sherry,

Beyond All Reason: The Radical Assault on Truth in American Law 30-50, 118-37 (1997) (arguing that radical multiculturalists' practice of 

"looking to the bottom" is detrimental to the goal of racial equality); Daniel A. Farber & Suzanna Sherry, Is the Radical Critique of Merit

Anti-Semitic?, 83 Cal. L. Rev. 853 (1995) (suggesting that looking to the bottom can be anti-Semitic and anti-Asian American); Daniel A.

Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993) (examining the

meritorious "value" of looking to the bottom and concluding that the value is minimal, if at all, and that such scholarship must pass muster

under "traditional" standards of legal scholarship) [hereinafter Farber & Sherry, Telling Stories]; Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1787-1810 (1989) (challenging the notion that scholars of color have unique standing in, or

contribute a unique voice to, race scholarship). But cf. Milner S. Ball, The Legal Academy and Minority Scholars, 103 Harv. L. Rev. 1855

(1990) (responding to Kennedy); Robin D. Barnes, Race Consciousness: The Thematic Content of Racial Distinctiveness Critical Race

Scholarship, 103 Harv. L. Rev. 1864 (1990) (same); Jane B. Baron, Resistance to Stories, 67 S. Cal. L. Rev. 255 (1994) (responding to

Farber & Sherry, Telling Stories, supra); Scott Brewer, Choosing Sides in the Racial Critiques Debate, 103 Harv. L. Rev. 1844 (1990)

(responding to Kennedy); Richard Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 Vand. L. Rev. 1 (1991) (same); Richard

Delgado, Mindset and Metaphor, 103 Harv. L. Rev. 1872 (1990) (same); Richard Delgado, On Telling Stories in School: A Reply to Farber

and Sherry, 46 Vand. L. Rev. 665 (1993) (responding to Farber & Sherry, Telling Stories, supra); Richard Delgado, When a Story Is Just a

Story: Does Voice Really Matter?, 76 Va. L. Rev. 95 (1990) (responding to Kennedy); William N. Eskridge, Jr., Gaylegal Narratives, 46

Stan. L. Rev. 607 (1994) (responding to Farber & Sherry, Telling Stories, supra); Leslie G. Espinoza, Masks and Other Disguises: Exposing

Legal Academia, 103 Harv. L. Rev. 1878 (1990) (responding to Kennedy); Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A

Defense of Outsider Narratives in Legal Scholarship, 82 Geo. L.J. 1845 (1994) (responding to Farber & Sherry, Telling Stories, supra); Alex

M. Johnson, Jr., Racial Critiques of Legal Academia: A Reply in Favor of Context, 43 Stan. L. Rev. 137 (1990) (responding to Kennedy);

Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705 (same). But see Daniel A.

Farber & Suzanna Sherry, The 200,000 Cards of Dimitri Yurasov: Further Reflections on Scholarship and Truth, 46 Stan. L. Rev. 647(1994) (responding to Baron, Delgado, Eskridge, and Fajer). In the case of Randall Kennedy's article, the debate was not only in the pages of 

law reviews, but also in the popular press. See Derrick Bell, Letter to the Editor, N.Y. Times, Jan. 26, 1990, at A30; Micaela diLeonardo &

Adolph L. Reed, Jr., Letter to the Editor, Academic Poverty-Pimping, The Nation, Oct. 23, 1989, at 442; Mari J. Matsuda, Letter to the

Editor, Critical Consciousness, The Nation, Nov. 27, 1989, at 622; Charles Rothfeld, Minority Critic Stirs Debate on Minority Writing, N.Y.

Times, Jan. 5, 1990, at B6; Jon Wiener, Law Profs Fight the Power, The Nation, Sept. 4, 1989, at 246; George F. Will, Editorial, Academic

Set-Asides, Wash. Post, May 17, 1990, at A27.

n3. See generally, e.g., Michael Omi & Howard Winant, Racial Formation in the United States from the 1960's to the 1980's (1986); Ian F.

Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1

(1994); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).

n4. See Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101

Harv. L. Rev. 1331, 1373 (1988). In her article, Professor Crenshaw charts the construction of Blackness in relation to Whiteness as follows:

[SEE TABLE IN ORIGINAL]

Id. at 1373.

n5. See generally C. Vann Woodward, The Strange Career of Jim Crow (3d ed. 1974); see also Derrick Bell, Getting Beyond a Property in

Race, 1 Wash. U. J.L. & Pol'y 27, 32 (1999); Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural identity, 64 N.C. L. Rev.

303, 310, 320-21 (1986).

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n6. 163 U.S. 537 (1896).

n7. Id. at 559 (Harlan, J., dissenting).

n8. Id. at 561.

n9. See generally Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 UCLA L. Rev. 1467 (2000); Darren Lenard Hutchinson,

Ignoring the Sexualization of Race, 47 Buff. L. Rev 1 (1999).

n10. See generally Neil Gotanda, Multiculturalism and Racial Stratification, in Mapping Multiculturalism 238-50 (Avery F. Gordon &

Christopher Newfield eds., 1996) (discussing the subordination of several racial and ethnic minorities); Athena D. Mutua, Shifting Bottoms

and Rotating Centers: Reflections on LatCrit III and the Black/White Paradigm, 53 U. Miami L. Rev. 1177, 1183 (1999) (adopting the term

"shifting bottom" to analyze "the different impact that 'white power's' obsessions have on various groups"); Juan F. Perea, The Black/White

Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 85 Cal. L. Rev. 1213, 1253 (1997) (asserting that "the

exclusive focus of most scholarship on the Black-White relationship, constitutes a paradigm which obscures and prevents the understanding

of other forms of inequality, those experienced by non-White, non-Black Americans"); Enid Trucios-Haynes, Why "Race Matters:" LatCrit

Theory and Latina/o Racial Identity, 12 La Raza L.J. 1, 6 (2001) (arguing that "[a] functional definition of race would recognize that the

Latina/o community, as a whole, is perceived in racial terms by the White majority").

n11. A leading example is the riots in Los Angeles, California after the acquittal of the four police officers accused of beating Rodney King.

During the riots, much of the African American anger was directed at Korean merchants in Los Angeles. See, e.g., Bill Ong Hing, To Be an

American: Cultural Pluralism and the Rhetoric of Assimilation 162 (1997) (describing the conflict between Blacks and Korean Americans);

Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los

Angeles," 66 S. Cal. L. Rev. 1581 (1993); Leland T. Saito, Asian Americans and Latinos in San Gabriel Valley, California: Interethnic

Political Cooperation and Redistricting 1990-92, in Los Angeles - Struggles Toward Multiethnic Community: Asian American, African

American, and Latino Perspectives 55 (Edward T. Chang & Russell C. Leong eds., 1994); William R. Tamayo, When the "Coloreds" Are

Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 Asian L.J. 1, 12-15 (1995).

n12. See generally Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. Pitt. L. Rev. 237, 302-03 (1996)

(opposing comparisons of discrimination against gays to discrimination against racial minorities because "'the relevant question is not who

has suffered more among minorities,' but simply whether unjustified discrimination against a minority group exists" (citation omitted)); Enid

Trucios-Haynes, The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of the American National Identity,

76 Or. L. Rev. 369, 420-22 (1997) (arguing that ordering oppressions along a hierarchy prevents coalition-building among communities of 

color); Robert Westley, Many Billions Gone: Is It Time To Reconsider the Case for Black Reparations?, 40 B.C. L. Rev. 429, 457 n.111

(1998) ("Although I believe that comparative victimology can be useful from the standpoint of establishing historical facts about the

different treatment of various groups, ultimately the attempt to quantify pain must leave a bad taste in the mouth of any fair-minded

reader.").

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n13. Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992).

n14. Significantly, the concept of racial priority can be easily de-coupled from self-interested political engagements. In other words, in a

particular context, a Black person's racial priority might require her to engage in antiracism on behalf of, for example, Asian Americans.

n15. For a more difficult case, see Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-Baby - LatCrit Theory and the Sticky

Mess of Race, 85 Cal. L. Rev. 1585, 1639-40 (1997).

n16. See Richard D. Kahlenberg, The Remedy: Class, Race, and Affirmative Action, 46-47 (1996); see also John E. Morrison,

Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 Iowa L. Rev. 313, 314 (1994).

n17. See William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy 112-18, 146-49 (1987); see

also Fullilove v. Klutznick, 448 U.S. 448, 538 (1980) (Stevens, J., dissenting) ("Those who are the most disadvantaged ... are the least likely

to receive any benefit from the special privilege ... ."); Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action

Debate, 99 Harv. L. Rev. 1327, 1333 (1986). But see Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential

Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 Harv. BlackLetter L.J. 1, 5 (1994) (refuting CornelWest, Shelby Steele, and Stephen Carter's representation of "the mythic picture of the contemporary middle-class African American,

allegedly shielded from real disadvantage or discrimination by his or her middle class status, who nonetheless unfairly benefits from

race-based affirmative action policies"). But see Tanya K. Hernandez, An Exploration of the Efficacy of Class-Based Approaches to Racial

Justice: The Cuban Context, 33 U.C. Davis L. Rev. 1135, 1148-51 (2000) (arguing that class solutions can exacerbate racial tension).

n18. See Francisco Valdes, Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-connectivities, 5 S. Cal. Rev. L. &

Women's Stud. 25, 33 (1995) ("As lesbians and gay men, we are marginalized in different but similar ways ... precisely because we are

constructed as 'sexual aberrations' under the conventions of compulsory hetero-patriarchy.").

n19. See Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 Harv. L. Rev. 10, 17-19, 38-47 (1987)

(discussing the extent to which law is structured around male norms).

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n20. See Elvia R. Arriola, Law and the Family of Choice and Need, 35 U. Louisville J. Fam. L. 691, 691 (1997) (stating that as a Latina

lesbian, her "identity is often at odds with the gender role expectations defined by [her] culture's values"); Berta Esperanza

Hernandez-Truyol, Latina Multidimensionality and Latcrit Possibilities: Culture, Gender, and Sex, 53 U. Miami L. Rev. 811, 823-28 (1999)

(exploring the multiply marginalized status of Latina lesbians). See generally Reynaldo Anaya Valencia, On Being an "Out" Catholic:

Contextualizing the Role of Religion at LatCrit II, 19 Chicano-Latino L. Rev. 449 (1998) (discussing the role of religion in Chicano/a

communities' exclusion of gays and lesbians).

n21. See generally Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender 10 (1978) (arguing that

although the extent to which women are relegated to the domestic sphere may vary by society, most women share the role of mother);

Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 25 (1987) ("Across time and space, there is too much

variance in women's status, role, and treatment for it to be biological, and too little variance for it to [be] individual... . Woman's

commonality, which includes our diversity, comes from our shared social position."). But see Elizabeth V. Spelman, Inessential Woman:

Problems of Exclusion in Feminist Thought 148 (1988) ("The situation of white middle-class women can be conflated with the situation of 

'women,' thus securing the privileged position of one group of women over others."); Angela P. Harris, Race and Essentialism in Feminist

Legal Theory, 42 Stan. L. Rev. 581 (1990) (arguing that feminist scholars' assertions of commonality among women results in ignoring the

voices of women of color); Julianne Malveaux, Gender Difference and Beyond: An Economic Perspective on Diversity and Commonality

Among Women, in Theoretical Perspectives on Sexual Difference 226 (Deborah L. Rhode ed., 1990) (recognizing that differences among

women, such as race and class, should be addressed in conjunction with commonalities).

n22. See generally Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples," 39 UCLA L. Rev. 169 (1991)

(discussing the legal status of Native American "race" and concluding that Native Americans see themselves as victims of racial

discrimination and as a result should be protected by the Fourteenth Amendment). But see Carole Goldberg, Descent into Race, 49 UCLA L.

Rev. 1373 (2002) (critiquing the courts' discussion of kinship and tribal affiliation in racial terms, thereby triggering strict scrutiny and

limiting federal protections for Native Americans); David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38

UCLA L. Rev. 759 (1991) (arguing that treating Native Americans as a "racial" classification is incorrect and potentially harmful).

n23. Anthony Paul Farley, All Flesh Shall See It Together, 19 Chicano-Latino L. Rev. 163, 167 (1998).

n24. There now exists a literature on Whiteness studies, which examines, among other things, the political, social, cultural, and legal

processes through which ethnic groups like the Italians and the Irish become White. See, e.g., Karen Brodkin, How Jews Became White

Folks and What That Says About Race in America (1998); Noel Ignatiev, How the Irish Became White (1995). For an introduction to the

literature on White studies, see Critical White Studies: Looking Behind the Mirror (1997) (Richard Delgado & Jean Stefancic eds.). Much of 

this literature has as its point of departure Cheryl Harris' now-classic Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).

n25. An additional difficulty derives from the fact that race is a performative, and not simply a status, identity. See generally Devon W.

Carbado & Mitu Gulati, Conversations at Work, 79 Or. L. Rev. 103 (2001); Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11

J. Contemp. Legal Issues 701 (2001); Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259 (2000).

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n26. In this context, the right outcome usually means a racially conscious and politically progressive outcome.

n27. Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. Pa. L. Rev. 561, 569, 571 (1984).

Delagdo argues that many minority scholars favor affirmative action on the basis of reparations because "white society has mistreated

Blacks, Native Americans, and Hispanics and now must make amends for that mistreatment," while White scholars "rarely deal with issues

of guilt and reparation. When they do, it is often to attach responsibility to a scapegoat, someone of another time or place, and almost

certainly of another social class than that of the writer." Id.

n28. Matsuda, supra note 1, at 362 ("Reparations is a legal concept generated from the bottom. It arises not from abstraction but from

experience.").

n29. It is not at all clear that either Mari Matsuda's or Richard Delgado's arguments fall into this category.

n30. See, e.g., Duncan Kennedy, A Culturalist Pluralist Case for Affirmative Action in Central Legal Academia, in Critical Race Theory:

The Key Writings that Formed the Movement 159 (Kimberle Crenshaw et al. eds., 1995).

n31. See generally Paul M. Barrett & Jill Abramson, The Thomas Hearings - Unsolved Mysteries: Even If Confirmed, Judge Thomas Will

Be Under Cloud of Doubt, Wall St. J., Oct. 14, 1991, at A1; Michael Briggs, Thomas Put on Hold, Harassment Furor Delays Vote a Week,

Chi. Sun Times, Oct. 9, 1991, at 1; Walter V. Robinson, Thomas Vote Delayed A Week, Hearings Set to Air Charge of Harassment, Boston

Globe, Oct. 9, 1991, at 1; Jill Smolowe, She Said, He Said, Time, Oct. 21, 1991, at 36.

n32. During the U.S. Senate Judiciary Committee hearings regarding Clarence Thomas' nomination, Anita Hill testified that Thomas

frequently invited her on dates when she worked under his supervision at the Department of Education. Statement of Anita F. Hill to the

Senate Judiciary Committee October 11, 1991, in African American Women Speak Out on Anita Hill-Clarence Thomas 19, 20 (Geneva

Smitherman ed., 1995). Hill further testified that Thomas initiated sexually explicit conversation on several occasions: "He spoke about acts

that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape

scenes." Id. These overtures continued, in spite of Hill's protests, in the Equal Employment Opportunity Commission (EEOC), whereThomas continued to supervise Hill. Id. at 21. In fact, Hill testified that the constant harassment was so severe that it resulted in her

hospitalization for stress-induced stomach pains. Id. at 22.

n33. Numerous scholars argued that the Clarence Thomas Senate Judiciary Committee hearings pathologized Black sexuality before a

national audience. See Ernest Allen, Jr., Race and Gender Stereotyping in the Thomas Confirmation Hearings, in Court of Appeal: The

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Black Community Speaks Out on the Racial and Sexual Politics of Thomas vs. Hill 25 (Robert Chrisman & Robert L. Allen eds., 1992)

(situating the Thomas hearings in an historical context in which Black men were labeled as oversexed and Black women as sexually impure)

[hereinafter Court of Appeal]; Charles R. Lawrence III, The Message of the Verdict: A Three-Act Morality Play Starring Clarence Thomas,

Willie Smith, and Mike Tyson, in Black Men on Race, Gender, and Sexuality: A Critical Reader 212, 213-14 (Devon W. Carbado ed., 1999)

[hereinafter Black Men]. Charles R. Lawrence III writes:

White America would hear this story not just as a lesson about the ubiquity of sexual harassment in the workplace but as a story about

oversexed black men. There was another part of the story of black sexuality that all of us heard but few of us acknowledged: the story of the

'unchaste' black woman who has no right to refuse the sexual advances of any man.

Id.; Nell Irvin Painter, Hill, Thomas, and the Use of Racial Stereotype, in Race-ing Justice, En-gendering Power: Essays on Anita Hill,

Clarence Thomas, and the Construction of Social Reality 200, 208, 209 (Toni Morrison ed., 1992) (discussing depictions of Thomas as a

"black-beast-rapist" and Hill as an "oversexed-black-Jezebel") [hereinafter Race-ing Justice]; Jack E. White, The Stereotypes of Race (On

Sexual Issues), Time, Oct. 21, 1991, at 66 ("Black women's complaints about sexist behavior are taken even less seriously than white

women's... . On the other hand ... given the stereotype of sexually rapacious black men, it was easy for many Americans, black and white, to

conclude that Thomas was guilty even before they heard Hill's testimony.").

n34. As President Ronald Reagan's appointed Director of the Office for Civil Rights, Thomas was criticized for limiting legal recourse for

victims of racial discrimination. See Christopher E. Smith & Joyce A. Baugh, The Real Clarence Thomas: Confirmation Veracity Meets

Performance Reality 17 (2000). In particular, Thomas "opposed affirmative action, goals and timetables in hiring policies intended to

diversify a company's workforce, and comparable worth, a controversial policy intended to ensure that women were paid as much as men in

positions that required comparable levels of skill." Id. Thomas was also an outspoken opponent of women's right to choose abortion. Id. at

23 (describing a speech that Thomas made while he was chairman of the EEOC, praising an article that advocated outlawing abortion).

Thomas carried these views to the U.S. Court of Appeals for the District of Columbia, where he served as a judge under the appointment of 

President George Herbert Walker Bush in 1989. Id. at 18.

n35. Toni Morrison, Friday on the Potomac, Introduction to Race-ing Justice, supra note 33, at viii.

n36. The National Association for the Advancement of Colored People (NAACP) announced its opposition to Thomas' nomination on July

31, 1991 - weeks after the nomination - and after several liberal groups and women's rights groups had already denounced Thomas. See

James H. Rubin, NAACP Opposes Thomas for High Court, S.F. Examiner, Jul. 31, 1991, at A1.

n37. See Jane Mayer & Sue Abramson, Strange Justice: The Selling of Clarence Thomas 184 (1994).

n38. This sentiment was most clearly articulated by Maya Angelou: "Because Clarence Thomas has been poor, has been nearly suffocated

by the acrid odor of racial discrimination, is intelligent, well trained, black and young enough to be won over again, I support him." Maya

Angelou, I Dare to Hope, in Court of Appeal, supra note 33, at 35; see also Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role

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Models and Public Confidence, 57 Wash. & Lee L. Rev. 405, 483 (2000) ("Some [Blacks] advocated supporting Thomas because they

feared that if Thomas were not confirmed, President Bush would appoint a white candidate to fill the position. Others believed that as a

black man Thomas ultimately would prove himself committed to the advancement of civil rights in his decision-making on the Court."

(citations omitted)).

n39. Mayer & Abramson, supra note 37, at 184-85.

n40. See Manning Marable, Clarence Thomas and the Crisis of Black Political Culture, in Race-ing Justice, supra note 33, at 64. According

to Marable:

If Bush had genuinely desired to nominate a black Republican judge with outstanding legal credentials, he would have ignored Thomas

entirely and selected Amalya Kearse, an African American currently serving on the federal appeals court in New York. But Kearse's legal

reputation as a moderate, despite her Republican Party affiliation, made her unacceptable to the extreme right wing.

Id.

n41. Indeed, Thurgood Marshall's tenure on the bench was marked by struggles for civil rights. See, for example, Juan Williams, Thurgood

Marshall: American Revolutionary 332-404 (1998) for a thorough discussion of Marshall's jurisprudence. As such, any comparison between

Marshall and Thomas is quite superficial. See also Ifill, supra note 38, at 483-84 (arguing that as an advocate of Black civil rights, Marshall's

position as a Black justice was quite different from that of Thomas).

n42. Mayer & Abramson, supra note 37, at 214. Complicating matters further was the fact that Senator Edward Kennedy's ability to

critically engage Thomas was circumscribed by the fact of his nephew's rape trial. See id. at 185.

n43. Mayer & Abramson, supra note 37, at 214. Of course, Thomas is not at all self-made if by that one means that he was not the

beneficiary of affirmative action.

n44. See id. at 299 (noting that Thomas described the confirmation hearing as a "high-tech lynching for uppity blacks").

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n45. Numerous scholars have criticized Thomas' use of the lynching metaphor, primarily because Thomas had been such an outspoken

opponent of Blacks who claim racial discrimination. See Kimberle Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist

Appropriations of Anita Hill, in Race-ing Justice, supra note 33, at 402, 417 (discussing the irony of using "the color of his skin as a defense

to judgments of his character" by Thomas, "a man who has adamantly insisted that blacks should be judged on the content of their character

rather than the color of their skin"). Scholars also criticized Thomas' use of the lynching metaphor, as it deflected attention from Hill's claims

of sexual harassment. See Homi K. Bhabha, A Good Judge of Character: Men, Metaphors, and the Common Culture, in Race-ing Justice,

supra note 33, at 232, 235 ("Raising the figure of the lynched black man is Thomas' attempt to divert attention from the content or substanceof Anita Hill's sexual-harassment charges. But beyond that, Thomas uses the vivid imagery of an antiracist language to silence the feminist

discourse on sexual harassment ... ."); Devon W. Carbado, The Construction of O.J. Simpson as a Racial Victim, in Black Men, supra note

33, at 159, 166 (arguing that Thomas garnered Black support - at Anita Hill's expense - by invoking a metaphor so deeply connected to

historical Black oppression); Crenshaw, supra note 33, at 416 (arguing that "Thomas' play on the lynching metaphor racially empowered

him," and left Hill defenseless). Critics of Thomas also argued that his use of the lynching metaphor was historically inaccurate. See id.

("Allegations relating to the sexual abuse of black women have had nothing to do with the history of lynching, a tradition based upon white

hysteria regarding black male access to white women."); Kendall Thomas, Strange Fruit, in Race-ing Justice, supra note 33, at 364, 370-71

(discussing the fact that no Black man had ever been lynched as a result of a Black woman's claims of sexual abuse and that Black women

were also lynched as a form of sexual control).

n46. Mayer & Abramson, supra note 37, at 300.

n47. See Chang, supra note 1, at 30-37 (arguing that dominant or "outsider" voices do not adequately represent the concerns of Asian

Americans).

n48. Kimberle Williams Crenshaw, Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat'l Black L.J. 1, 2 (1989) (describing

"perspectivelessness" as the dominant White belief in "the objectivity of legal discourse").

n49. Delgado, supra note 27, at 563.

n50. Devon W. Carbado, The Ties That Bind, 19 Chicano-Latino L. Rev. 283, 287 (1998).

n51. Id. at 288.

n52. Id.

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n53. See generally Erik K. Yamamoto et al., Race, Rights & Reparation: Law and the Japanese American Internment (2001).

n54. Perhaps the paradigm should be referred to as the White over Black paradigm to more completely reflect the asymmetrical racial

relationship between the two identities in the paradigm.

n55. One of the few critiques of the discourse on the Black/White paradigm is Janine Young Kim, Are Asians Black?, 108 Yale L.J. 2385

(1999). I do not agree with all of her claims, but the essay constitutes a very thoughtful intervention.

n56. 4 Cal. 399 (1854).

n57. See id. at 399.

n58. See id. at 403-04.

n59. 260 U.S. 178 (1922).

n60. Act of July 14, 1879, ch. 255, 7, 16 Stat. 254 (1942) (superceded by 8 U.S.C. 703 (1943)). It was not until 1952 that the Black/White

ban for naturalization was disrupted. See Immigration and Naturalization Act of 1952, ch. 2, 311, 66 Stat. 239 (codified as amended at 8U.S.C. 1422 (2001)).

n61. Ozawa, 260 U.S. at 198. For a useful discussion of the naturalization cases, see Ian F. Haney-Lopez, White by Law: The Legal

Construction of Race (1996). See also John Tehranian, Note, Performing Whiteness: Naturalization Litigation and the Construction of Racial

Identity in America, 109 Yale L.J. 817 (2000) (challenging Haney Lopez's reading of those cases).

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n62. 275 U.S. 78 (1927).

n63. Id. at 81.

n64. See id.

n65. See id. at 82, 84.

n66. See id. at 81-82.

n67. See generally, e.g., Laura E. Gomez, Race, Colonialism, and Criminal Law, 34 Law & Soc'y Rev. 1129 (discussing how racism and

colonialism help to explain the history of nineteenth-century New Mexico).

n68. Frantz Fanon, Black Skin White Masks 113 (Charles Lam Markmann trans., 1967) ("The Negro is an animal, the Negro is bad, the

Negro is mean, the Negro is ugly.").

n69. See generally Richard Delgado, Rodrigo's Fifteenth Chronicle: Racial Mixture, Latino-Critical Scholarship, and the Black-White

Binary, 75 Tex. L. Rev. 1181 (1997); Perea, supra note 10.

n70. Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 Stan. L. Rev. 855, 890, 896-97 (1995).

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n71. See Marty B. Lorenzo, Race-Conscious Diversity Admissions Programs: Furthering a Compelling Interest, 2 Mich. J. Race & L. 361,

413-14 (1997).

n72. See discussion of Ozawa, Gong Lum, and Hall, supra text accompanying notes 56-61.

n73. See generally Devon W. Carbado, Race, Law & Citizenship: Black Civil Rights Responses to Japanese-American Internment

(unpublished manuscript on file with author).

n74. Espinoza & Harris, supra note 15, at 1596.

n75. Cf. Crenshaw, supra note 4, at 1373 (observing the ways in which White identity is constructed in opposition to Black identity).

n76. See http://www.LatCrit.org/.

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