Kimberle Williams Crenshaw

Foreword: Toward a Race-Conscious Pedagogy in Legal Education,
 11 Nat'l Black L.J. 1, 11-12 (1989)(citations omitted).

. . . [The] legal framework under which many cases arise often determines whose perspectives are relevant and whose are not. For a number of reasons discussed above, minority perspectives are often excluded and dominant perspectives are privileged in the legal inquiry. Moreover, dominant perspectives are not identified or associated with any characteristics; the perspective is nameless. Most debilitating for minorities, however, is that while dominant perspectives are granted the protection of apparent objectivity, minority perspectives are identified as such and viewed as subjective and biased. As a result, legal concepts, claims, and categories that value minority perspectives are sometimes viewed as suspect or biased.

These observations can be illustrated with a brief review of the tension between competing frameworks for defining and remedying racial discrimination. Perspectives are important in determining the scope of anti-discrimination law. Yet minority perspectives are rendered irrelevant by some of the United States Supreme Court's approaches in which the significance of the victim's experience of domination is minimized by the search for an actor who intentionally and irrationally discriminated against certain victims. The result of this search is that protection afforded to minorities is limited.

Discriminatory intent is increasingly the sine qua non of a successful claim. The United States Supreme Court has adopted the view that the injury is found in the intentional deprivation of rights on the basis of race. Thus, the inquiry focuses on the beliefs, actions, and experiences of perpetrators. This effort to ground antidiscrimination protection in the identification of a particular discriminating actor might appear to be rational and noncontroversial in the absence of a competing view. Yet, when we contrast this view. . . with what we called the "domination approach," another equally plausible view is revealed. In the domination model the search for a particular perpetrator is not as important as seeking to remedy the conditions which render the community in question subordinate to whites. Such an approach relies on the reintroduction of historical details and the inclusion of the victims' personal experiences and aspirations which initially gave rise to the case. This domination model values the perspectives of the victims and when those perspectives are introduced, the conclusions drawn from the discrimination model make less sense. Unlike the discrimination approach, the domination model privileges the perspective of the victim. Her views, her experiences and her condition become the focal point of the analysis. Under the domination model, intentionality--which is the determinative factor under the discrimination model--is but an additional insult to an already established injury.

Thus, the doctrinal framing of an issue can determine which perspectives are central and which are irrelevant in legal analysis. Moreover, the reasonableness of a particular legal framework or resolution depends, in turn, on whether the perspective it empowers happens to be a perspective that is familiar to or shared by the analyst. When the analyst shares the perspective that is privileged, the process seems to be reasonable, rational and objective. Because the subjectivity of the perspective that is empowered by the doctrinal framework is rarely perceived, the results that follow from privileging that perspective are seldom regarded as being arbitrary, irrational or biased.

If it is true that the objectivity of legal analysis is grounded in the apparent perspectivelessness of the dominant discourse, then the introduction of competing perspectives can destabilize this apparent objectivity. More importantly, creating space for competing perspectives can loosen the constraints upon those who have been forced to adopt a perspective which is often at odds with their reality. By contrasting alternative points of view with the dominant perspective, the subjectivity of legal analysis is revealed.

. . . [L]egal analysis--like other modes of analysis--is grounded in a perspective. Since perspectives are informed in part by experiential characteristics such as race, then race often does figure into legal analysis. It is not necessary that race be explicitly referred to in order to be salient. Formal neutrality that is often mistaken for objectivity merely masks the particular characteristics of the empowered perspective; it does not erase them. For minorities, . . . the myth of perspectivelessness is often analytically and emotionally dis-empowering. When such a significant part of their consciousness and life experiences is forced outside the discourses they are left to ground their analysis on unfamiliar and alienating turf. . . . [In court, minorities] must subordinate their interests in alleviating the actual circumstances of racial domination to an endless search for a "smoking rope" 

[Law students and lawyers] should be encouraged to include their personal, experiential knowledge in legal analysis. The personal is especially important in engaging in the normative debate within [torts law], and in the debate over the role of law in general. . .
 

One very painful aspect of the practice of law is the existence of race and gender bias within the legal system. As . . . law professors, many of us struggle to provide our student with a meaningful analysis of the impact of bias on the practice of law. Recent efforts . . . to bring race and gender bias to the attention of students have stimulated frank classroom discussion of the subject. Yet the structure of current teaching approaches to bias may prevent students from examining the full range of relevant issues on an objective, as well as, personal level. .

Scarnecchia, Gender & Race Bias Against Lawyers: A Classroom Response, 23 U. Mich. J.L. Ref. 319 (1990).