Brandon L. Paradise
Rutgers Law School - Newark
September 1, 2009
Washington University Journal of Law and Policy, Vol. 33, 2010
Rutgers School of Law-Newark Research Paper No. 074
In recent years legal scholars have debated whether the law should recognize rights to cultural differences associated with race. Scholars in favor of the law providing such rights have generally sought to ground “rights-to-difference” on the theory that because racial identity is performative protecting against race-based discrimination includes proscribing discrimination against performances of racial identity. Scholars opposed to the law acknowledging rights-to-difference have argued that race (an ascribed identity) is distinguished from cultural practices. As a result, cultural discrimination cannot constitute racial discrimination. Moreover, legislating rights-to-difference risks reifying stereotypes associated with membership in oppressed groups, so that, for example, providing a right to speak Ebonics perpetuates stereotypes that black people do not speak standard English.
Militant Covering argues that while scholars have come to different conclusions on whether rights-to-difference ought to be legislated, the major contributors to the debate have all emphasized the costs (variously, as psychological and dignitary harms or in terms of racial subordination) of difference. Rather than emphasizing the harm of difference, and whether the law ought to protect against such harm, Militant Covering seeks to show how the rights-to-difference debate has prioritized dignitary or psychological interests over the pursuit of power.
In showing how rights-to-difference overlooks the accumulation of power, Militant Covering traces contemporary understandings of the significance of black cultural distinctives to the black power movement of the late 1960s and early 1970s. It argues that while black power understood cultural distinctives as essential to a politics directed toward the economic and political independence of black people, contemporary rights-to-difference understands the right to black cultural distinctives as turning on whether such rights are necessary to protect against racial discrimination occurring within integrated environments. Moreover, whereas black power asserted black cultural distinctives as necessary to a politics of independence, rights-to-difference requests a right to black cultural distinctives in integrated environments.
Militant Covering broadens the debate between those who wish to protect against the harms incurred by discrimination against cultural practices and those who worry that protecting such practices might reify stereotypes foisted upon members of oppressed minority groups. Using President Barack Obama’s presidential campaign as a paradigmatic example of strategic emphasis and de-emphasis of blackness, Militant Covering shows how rights-to-difference discourse’s overemphasis on the harms of covering fails to acknowledge the empowering potential of strategic covering performances.
While Militant Covering does not argue that we have become a “post-racial society,” its emphasis on a strategic approach to cultural distinctives is appropriate in an era in which race is clearly no longer a categorical bar to admission to the inner circles of the nation’s power centers. Although our society has not become post-racial, in arguing for such a strategy, Militant Covering asserts that the contemporary era is one in which blacks can benefit by strategically resisting the role of the ultimate “other.”
Number of Pages in PDF File: 50
Keywords: covering, rights-to-difference, culture, rights to cultural difference, black power, Obama, identity theory, performativityAccepted Paper Series
Date posted: July 30, 2010 ; Last revised: October 6, 2010
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