A Perilous Path: Talking Race, Inequality, and the Law

by Sherrilyn Ifill, Loretta Lynch, Bryan Stevenson, and Anthony C. Thompson

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The North won the Civil War, but the South won the narrative war. The South was able to persuade the United States Supreme Court that racial equality wasn’t necessary. And they reclaimed a racial hierarchy.


Tony Thompson: Bryan, with the exception of federal courts, the branches of federal government and many state governments are largely in the hands of those ideologically aligned with the administration. Given that, in what specific areas can those who are concerned about racial justice and inequality look to gain ground over the coming years?

Bryan Stevenson: I think we’re going to have to focus on some things that we’ve not focused on. And I think it’s partly looking at what federal government can do. It’s also looking at what local governments can do. But I think we have to transcend even those institutional frames. For me, the challenge that we face is a narrative battle. I don’t think we’ve actually done very effective narrative work in this country. We had a genocide in America. When white settlers came to this continent, they killed millions of native people, through famine and war and disease. And we forced those people from their lands. We kept their names. We named streets and buildings and counties and things after them, but we forced them off. And because of a narrative shift, we didn’t say, “That’s a genocide.” We said, “Those people are savages.” And that narrative failure to own up and acknowledge their humanity allowed us to think that we hadn’t done anything immoral. But we did.

And then we had slavery and the Civil War.

The North won the Civil War, but the South won the narrative war. The South was able to persuade the United States Supreme Court that racial equality wasn’t necessary. And they actually reclaimed a racial hierarchy, that ideology of white supremacy. And we allowed that to happen for a hundred years. Then we had horrific terrorism and violence. We ended the mass lynchings with impunity, but those who perpetrated that terrorism and violence won the narrative war. They were never held accountable. And then we got into the Civil Rights Era, where there was this massive, incredible movement led by extraordinary people, like Dr. King and Rosa Parks. We won passage of the Voting Rights Act; we won passage of the Civil Rights Act. But we lost the narrative war.

The people who were holding the signs that said “segregation forever,” and “segregation or war,” they were never forced to put down those signs. They didn’t wave them around anymore, but they kept adhering to that value. And now we’re living at a time where that thriving narrative of racial difference, that ideology of white preference, has exhibited itself, and now we’re dealing with the consequences of that. We won an election in 2008, but we lost the narrative battle. We actually allowed that president to be demonized and victimized and marginalized because he’s black—not because of anything he said or did. And our comfort with that kind of demonization is, I think, at the heart of the challenge that we face.

So, I want us to be engaged in legal battles in court. I want us to be thinking strategically, politically, about how we claim federal government and make local government work for us. But we’ve got to start fighting a narrative battle. We’ve got to create a country and a culture where you are not allowed to say, “I’m going to ban people because they’re Muslims,” and win with that. You’re not allowed to ban people.

There will always be people who try to exploit the fear and anger that give rise to these kinds of narratives of racial difference. And I think we haven’t done a very good job. Too many of us have taken advantage of the legal battles while leaving behind the narrative battle. And that for me is the great challenge that we face.

Sherrilyn Ifill: I think Bryan could not be more on point. And what worries me is how relentless the narrative battle has to be. Because the only place where I would disagree with Bryan is, I think, out of the Civil Rights Movement: we won the narrative battle . . . ish. And by that, I mean two things. One, there were a lot of compromises on the narrative: It’s all about, you had to be peaceful, and love, and “content of character,” and “I have a dream,” right? So that’s distorted, number one. Number two: you never really win the narrative. You have to keep it up. And I can remember when I first came to the Legal Defense Fund in 1988, Julius Chambers was the Director-Counsel, and I was litigating voting rights cases, and I was getting ready to file a case in Oklahoma, and I had my little press release. And I remember Julius—noble, brilliant civil rights lawyer, whom I revered—saying, “We do our talking in the courtroom.” Which is kind of a nice thing to say.

But actually, that was precisely the moment when the Heritage Foundation and American Enterprise Institute were forming their centers, and they were creating a narrative and a story. I can remember when I started teaching constitutional law—you get your casebooks and so forth. And back in the eighties, to use the words reverse discrimination to describe affirmative action was like a slur. You couldn’t call affirmative action reverse discrimination. By the time I was in my seventh year of teaching, the Rotunda casebook, the whole section on affirmative action was called “reverse discrimination.” So they had taken over the language, because we hadn’t tended to it. There was a way in which we won some of the narrative, and then, as you say, we kind of left it alone. And so you have to keep at it. There’s no permanent win.

Bryan Stevenson: I think if you don’t hold people accountable for the narrative assaults that they make, then you’re never going to prevail. Because the South never voted for the Voting Rights Act, or the Civil Rights Act. They regrouped, started organizing in precisely the way you are describing, and then, forty-eight years later, they won a Supreme Court case, Shelby County, because their narrative persuaded the United States Supreme Court that we don’t need the Voting Rights Act anymore (at a time when we still saw the same suppression efforts). So I agree.

I look at domestic violence. When we were young, there was a show on TV called The Honeymooners. And the punchline was Jackie Gleason saying to his wife, “To the moon, Alice,” which was a threat of violence. And everybody laughed. We didn’t take domestic violence seriously. When women called the police to their homes after being assaulted, the cops would tell jokes to the guy to get him calm. As long as he was calm, they wouldn’t make arrests. And then we began to work on the narrative. We actually allowed women who are survivors of that violence to have a voice. They made the movie The Burning Bed. And we started talking about the pain and the injury and the suffering. Before you knew it, we started to think differently about that. And today, even these elite, professional athletes are risking something—not nearly enough, we still have a long way to go—when they engage in these acts of violence.

I think we’ve seen the same thing on climate change. But we haven’t made that kind of effort on race in my view, to direct things at the communities that need a narrative shift. And I think until we do that, we’re not going to make progress. I live in Alabama, and to me, Alabama doesn’t look a lot different than it would have looked eighty years ago, from the landscape level. If you’re celebrating Jefferson Davis’s birthday as a state holiday, if Confederate Memorial Day is a state holiday, if you don’t have MLK Day, but it’s “MLK/Robert E. Lee Day,” there is a narrative problem in your state. And, our two largest high schools, Robert E. Lee High and Jefferson Davis High—they’re 99 percent black, and nobody is saying anything about that. And that’s where I believe we’ve got to begin to re-engage in a conversation that doesn’t give away the power of the history; that is why we are all up here talking about race.

Tony Thompson: So let me ask you, if we don’t tether that conversation to court cases, how do we make it part of the national discourse, part of the national dialogue?

Loretta Lynch: I think it can start with court cases, in terms of the reactions to the court cases that we are seeing. I think some of the biggest disappointments for me have been this administration’s change in how they’re dealing with transgender issues. And I agree with both of you on the importance and the power of the narrative. When you shift away from this concept of taking away entitlement from one group and giving it to another, and focus on the pain that groups feel—groups that are actually all alike—you can start to shift that narrative. And that’s what we’ve started to do with our focus on transgender and LGBTQ rights: focus on the commonality of pain. We’re all different, but we can all suffer in similar ways. And so I think when it comes to racial issues also, you’re right: the narrative has been hijacked. It has become one of a limited slice of equality being taken from one group to the benefit of another who has not worked for it. But that narrative is as old as the hills. And so I think, when we look at how narratives are successfully changed, you come at them from another way. One of the ways in which you’re often able to get success is not by talking frankly about what’s right or what’s moral, but by talking about the cost of something. The cost of racism in this society to everyone—the literal dollar cost of racism to GDP—is huge. It’s tremendous. And so one way to engage on those issues, I think, is to expand the discussion beyond the whole moral issue. You have a group of people who at this point are probably not going to change their minds on that.


Copyright © 2018 by Center on Race, Inequality, and the Law, New York University School of Law. This excerpt originally appeared in A Perilous Path, published by The New Press. Reprinted here with permission.

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