Next-Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance

Article excerpt

In the post-civil rights era, black scholars such as Professor William Julius Wilson have highlighted class differences that they see as separating poorer Blacks from middle-class and upper-class Blacks in significant ways. As Wilson once asserted, "It is difficult to speak of a uniform black experience when the black population can be meaningfully stratified into groups whose members range from those who are affluent to those who are impoverished." (189) Additionally, the Pew Research Center recently released survey results that revealed a growing gap between the values of middle-class Blacks and poorer Blacks. Indeed, thirty-seven percent of all Blacks indicated that black people could no longer be thought of as a single race because of the diversity within the community. (190) Professor James Forman, Jr., contends similarly that "[c]lass differences have always existed within the black community--but never on anything approaching today's scale." (191) While noting that factors such as unemployment are extremely high for young black men and that "[i]n some respects, blacks are no better off than they were in the 1960s" but instead "are much worse off," Forman highlights the fact that the black middle class has grown significantly: black families who have an income of $100,000 a year or more increased from two percent of black households in 1967 to ten percent in 2011. (192)

Such increasing divisions within the black population arguably have significant implications for black civil rights attorneys' decisions and litigation strategies and for the degree to which they are perceived as representing the entire race. Scholars such as Forman have asked whether black elites, especially black practicing attorneys and law professors, have set an agenda to address racial discrimination in the criminal justice system that comports more with their own experiences--for example, by focusing on racial profiling, which "[a]ll blacks confront ... regardless of age, dress, occupation or social station," rather than on the concerns of a larger and more vulnerable portion of the black population, such as the mass incarceration of poor, uneducated Blacks. (193) Forman argues that the civil rights community's focus on more "universal" problems for Blacks, such as racial profiling or the societal racism and discrimination that warrant affirmative action policies, works to the disadvantage of those in the black community whose class status makes them vulnerable to mistreatment. Forman further inquires, "If prison is reserved for less-privileged blacks, what implications does this have for the idea that blacks share a linked fate that binds them across socioeconomic classes?" (194) Similarly, Professor Michelle Alexander has criticized the emphasis on legal work that tends to address the interests of relatively more privileged Blacks, such as affirmative action, instead of legally challenging the structures and policies that have resulted in the mass incarceration of black men. (195)

In all, what has become undeniable is that, unlike previous generations of civil rights lawyers, this current and the next generation of civil rights lawyers are not working within a context in which there is a completely totalizing structure of domination against Blacks. As Carbado and Gulati tell us, in today's world, some Blacks, even if only a limited number, will certainly be included within circles of power and opportunity. (196)


In this Part, we consider how learning from the civil rights efforts surveyed in Representing the Race and Acting White? may help to rechannel the current study and practice of civil rights law in more experimental, activist directions. The two books investigate the changing meaning of color and race in the evolution of the civil rights movement from the Jim Crow era through the election of President Obama.

Mack, Carbado, and Gulati demonstrate that new directions in civil rights advocacy and research may stem from the adoption of a flexible, race- and identity-conscious vision of community-based empowerment that looks to ally with grassroots organizations and reach multicultural populations. …