Become a Patron! 

Brandon Paradise

Excerpted from: Brandon Paradise, Racially Transcendent Diversity, 50 University of Louisville Law Review 415-489 (2012) (312 Footnotes)

The racial progress symbolized by Barack Obama's election to the U.S. Presidency, together with what many characterize as an Obama campaign that had at its center a racially transcendent theme, has led to widespread discussion of whether America has entered a post-racial era. To date, much commentary among race and law scholars has focused on refuting the notion that we have become a post-racial society. In particular, scholars have highlighted the role of race among voters in democratic primaries and in the 2008 presidential election; among other things, they have also noted race's role in Obama's nomination of Justice Sotomayor as Associate Justice of the U.S. Supreme Court, the events surrounding Professor Henry Louis Gates, Jr.'s arrest, the Birther Movement, and racially inflammatory depictions and descriptions of Obama among Tea Party activists. In addition to these specific incidences, many have argued that continuing racial disparities in, inter alia, unemployment rates, educational outcomes, and rates of incarceration belie the view that we are now in a post-racial age.

In light of continuing racial disparities in virtually every area of American life, as well as race's persistent significance in everyday life, the scholarly discussion has rightly focused on precluding the use of Obama's election as proof that our society is now post-racial-a term which lacks a single, precise, and agreed upon definition but which has been used to mean that America is beyond race or that racial progress has rendered unnecessary public focus on race as a basis for social action. Although this discussion has clearly articulated the continuing relevance of race, it has at times both conflated the Obama campaign's racial strategy with the post-racialism that it rightly exposes as erroneous and generally not appreciated the racial strategy actually pursued by the Obama campaign.

In contrast to this existing literature that both focuses on precluding attempts to use Obama's election as evidence that we have become post-racial and at times understands Obama as himself campaigning according to a post-racial strategy, this Article argues that President Obama's 2008 campaign is better understood as falling within a tradition of integration that can be traced to Dr. Martin Luther King, Jr. This argument is presented in three steps. The first step shows that decades of diversity rhetoric, 9/11, and the war on terror enabled Obama to appeal to the American electorate on the basis of a kaleidoscopic, diverse personal identity. The intention in this step of the argument is to show that Obama's appeal and election is not mainly, as some scholars have suggested, the redemption of whiteness or white guilt in exchange for votes and acceptance. To the contrary, Obama's appeal also reflects the rise of the diversity ideal and, in the wake of the George W. Bush presidency, the electorate's attraction to a cosmopolitan presidential candidate, who in light of his bi-racial heritage and international upbringing personally embodied the promise of unity in diversity.

In contrast to post-racialism, I call this appeal racially transcendent diversity. Whereas the former purports to be beyond race, in the latter race plays a central role. In particular, while acknowledging race's continuing significance, racially transcendent diversity seeks to achieve unity in the midst of diversity. In this way, racially transcendent diversity seeks to rise above race, even as it embraces racial diversity.

Moreover, from the nearly aerial vantage point suggested by Obama's kaleidoscopic background, racially transcendent diversity cultivates a politics of mutual understanding and empathy, wherein all voices are heard and understood, with the goal of ensuring that America works for everyone. Thus, racially transcendent diversity, unlike post-racialism, does not claim that we are beyond race but challenges us all to cooperate in the interests of our shared future and to avoid being bogged down in the racial divisions of the past.

The second step of the argument shows that racially transcendent diversity's aspiration to rise above race falls within an integrative tradition and is not a species of post-racialism. In particular, this second step shows that racially transcendent diversity reflects a diversity ideal of integration that has increasingly gained dominance over the assimilative ideal of integration. Moreover, because the diversity ideal of integration emphasizes mutual understanding across difference, it does not, like post-racialism, teach that our society need no longer focus on resolving racial divisions.

The third step of the argument takes the Article in a more practical direction. Acknowledging that, despite the appeal of racially transcendent diversity and the rise of the diversity ideal of integration, there remains a deficit of cross-racial mutual understanding and empathy, the third step argues that correcting this deficit, and therefore better realizing King's integrative ideal, requires exposing citizens to differences in their formative years. Because in our society K-12 education is the most feasible venue for such exposure, achieving cross-racial mutual understanding and empathy points to the need to integrate K-12 education. Notwithstanding this argument for K-12 integration, the Supreme Court's divided opinion in Parents Involved in Community Schools v. Seattle School District No. 1 raises constitutional barriers to such an integrative agenda. Seeking to develop the framework for a future paper, the third step of the argument concludes with a sketch of the constitutional grounds on which advocates of K-12 diversity might stand.

Corresponding to the three steps described above, the Article's argument is divided into three parts. Part II explains how decades of diversity rhetoric and 9/11 enabled Obama to appeal to the electorate on the basis of a politics-racially transcendent diversity-that emphasizes mutual understanding and empathy across difference. More specifically, Part II will show how 9/11 and diversity jurisprudence, as well as decades of diversity rhetoric in major institutions, all converged to foster a culture in which diversity and black people can be presented as central features of American identity. Having shown in Part II that diversity and black people can now be featured as central parts of American identity, Part III argues that racially transcendent diversity reflects a diversity ideal of integration, not a post-racial ideology. In particular, it will be shown that in modern American culture the diversity ideal has largely supplanted the assimilationist ideal. Because of this change in cultural conditions in favor of difference, the non-assimilationist ideal of integration reflected in racially transcendent diversity was able to garner broad support. In addition, while post-racialism claims that our society is beyond race, the non-assimilationist ideal of integration reflects an aspiration for cross-racial mutual understanding and empathy. Although this distinction is clear, Part III will suggest that critical race theory's hostility to assimilation and indifference toward integration may explain why existing scholarship largely focuses on defeating notions that Obama's election marks a post-racial age instead of energizing support for the diversity ideal of integration embedded in Obama's racial politics.

While racially transcendent diversity's electoral success indicates that the diversity ideal of integration enjoys a relatively high level of support, American society continues to experience deficits in cross-racial mutual understanding and empathy. Noting this deficit, Part IV draws on empirical research indicating that the capacity for cross-racial mutual understanding and empathy is best developed during citizens' formative years. Taking in a practical direction Part III's argument that the diversity ideal of integration has largely superseded the assimilationist ideal, Part IV argues that K-12 school integration provides the most obvious venue for enhancing citizens' capacity to engage difference on terms of mutual understanding and empathy. While, as is argued in Part III, American society is now perhaps more culturally prepared than ever to successfully pursue the diversity ideal of integration, as Part IV describes, K-12 integration faces newly raised constitutional obstacles. Outlining approaches that might counter the anti-integrative turn in the Court's jurisprudence, Part IV begins to lay the ground for a future paper in which I will more fully address the jurisprudential bases of an integrative agenda. Finally, rather than expending attention on the negative claim that we are not in a post-racial society, this Article concludes on a note of hope that through early exposure to difference we can indeed better realize Dr. King's integrative ideal and belief in the solidarity of the human family.

. Associate Professor of Law, Rutgers School of Law-Newark.